How Can I Get My Loved One’s Nursing Home Records in Florida?

Requesting Nursing Home Records in Florida

Following a bad experience in a nursing home, you may want to investigate the treatment your loved one received. Luckily, both state and federal law requires that accurate and detailed nursing home records be kept for each resident. The first step in examining the cause of a nursing home injury is to request the full set of medical records. But how do you request Mom’s nursing home records in Florida?

We explain in detail below how to request these records yourself. However, it is important to note that our Florida nursing home abuse law firm can obtain your loved one’s nursing home records at no up front cost. Call us to learn more about who we are, why we care and how we can help: 561-717-0817.

Getting Nursing Home Records for a Deceased Resident in Florida

As wrongful death attorneys, sadly, most of our cases involve the passing of the nursing home resident. The trouble that most families run into is that the Power of Attorney dies with the patient. This means, once your family member passes away, your Power of Attorney or Healthcare Surrogate is no longer valid. So how can you get your loved one’s nursing home chart after their death?

Using the Florida Statutes to Get Your Family’s Nursing Home Records After the Death

The controlling Florida statute is Section 400.145. At first read, Sect. 400.145 appears to require an Estate. This would require an estates and trusts lawyer opening the Estate of [Your Loved One’s Name] in Probate Court, with the Judge formally appointing a Personal Representative. This takes both time and money.

However, Sect. 400.145 offers a cheaper and quicker alternative. Subpart (2)(c) allows for the following:

(2)(c) If no judicial appointment has been made as provided in paragraph (a) or no person has been designated by the resident in a last will as provided in paragraph (b), only the following individuals:

1. A surviving spouse.

2. If there is no surviving spouse, a surviving child of the resident.

3. If there is no surviving spouse or child, a parent of the resident.

. . .

Paragraph (2)(c) must be accompanied by a letter from the person’s attorney verifying the person’s relationship to the resident and the absence of a court-appointed representative and self-proved last will.

Example of a Statutory Lawyer Request for a Deceased Resident’s Nursing Home

Getting Nursing Home Records for a Living Resident in Florida

Hopefully, your family member survived their nursing home residency. If so, there are various legal avenues which allow you to request your loved one’s nursing home chart.

Section 400.145 of the Florida Statutes

Under Section 400.145, nursing homes are required to furnish to the spouse, guardian, surrogate, proxy, or attorney-in-fact of a current resident within seven working days after a written request. If the request comes from a former resident that was discharged from the facility, the nursing home has within ten business days after receipt of a written request to provide a full set of the nursing home chart. 

HIPAA Release to get Mom’s Nursing Home Records

If you loved one is alive and has legal capacity, they can execute a HIPAA release form which allows you to obtain the records from the nursing home.

Health Care Surrogate to get FL Nursing Home Chart

Many of our potential clients believe their Health Care Surrogate form allows them to obtain their parent’s medical records. Unfortunately, nursing homes regularly reject the legal authority contained in a Health Care Surrogate form when reviewing record requests.

Here’s why: Health Care Surrogate forms generally grant the power to make medical decisions on behalf of the patient. Contrary to what most people think, this surrogacy form does not generally grant the power to obtain HIPAA protected medical records, like a nursing home chart. For this, you need to have your loved one execute a durable power of attorney.

Power of Attorney to Get Nursing Home Records in Florida

Power of Attorney is a term that gets thrown around a lot but if often misused. There are also various forms of Power of Attorney which grant different powers to the POA. If your loved one is still alive, have them sign a general power of attorney which allows you to obtain their nursing home records (see paragraph 14 below). A free template can be found below.

Unfortunately, financial power of attorney forms do not specifically allow for the recipient to get medical records. The same is true for powers of attorney specifically aimed at property transfers. Again, if your family member is alive, have them sign a general power of attorney. Another incentive is this general power of attorney will allow you to prosecute your loved one’s nursing home negligence lawsuit (see paragraph 20 below).

We are copying a General Florida POA template below that has worked for clients in the past.

DURABLE GENERAL POWER OF ATTORNEY

KNOW ALL PEOPLE BY THESE PRESENTS:

THAT, I, _______________________ (name), presently of _________________________ (city and state), hereinafter referred to as “Principal,” hereby name, constitute and appoint the Principal’s _________________ (relationship to Principal), ________________________ (Agent’s Name), presently of ____________________ (city and state), if living and able to act, hereinafter referred to as the “Agent.”

NOTICE   TO  THIRD   PARTIES:     YOU  MUST  ACCEPT   THIS  DURABLE  POWER OF ATTORNEY  IMMEDIATELY  OR  FACE  POTENTIAL   LIABILITY  FOR  UNREASONABLY REFUSING   TO  HONOR IT  PURSUANT  TO   §709.08.

The Agent shall be the Principal’s true and lawful attorney-in­ fact to act for and in the Principal’s stead, and for Principal’s benefit and use, to do all and any of the following things, to wit:

1. To carry on and to transact all of the Principal’s business in any state in the United States of America; to enter into, perform and carry out, and to rescind, terminate and cancel contracts of all kinds;
2. To buy, take on, lease and otherwise acquire, and to hold, sell, mortgage, hypothecate, pledge, lease and otherwise dispose of and in any and every manner deal with real property, leaseholds and other interest in real property, stocks, bonds, “flower bonds”, goods, wares, merchandise,  choses in action and other property and rights of any nature whatsoever  in possession  or in action; and to sign, seal, execute, acknowledge and deliver deeds, bills of sale, contracts, agreements, options, leases and other instruments;
3. To transact all of the Principal’s ordinary bank and finance business  at any of the banks,  savings  and  loan associations  or financial institutions in the State of Florida or in the United States of America; to draw checks on said banks; to endorse checks, promissory notes, drafts and bills of exchange for collection or deposit; to waive demand and notice of protest of all such writings; to deposit and withdraw any sum of money from any of the Principal’s accounts with said banks, savings and loan associations or financial institutions;

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4. To accept drafts and other negotiable  instruments  and to receive, endorse, negotiate and deliver bills of lading and other evidences and documents of title to merchandise, stock certificates and other securities; and to borrow money from said banks, savings and loan associations or financial institutions in the State of Florida or in the United States of America, from time to time upon such terms and at such rates of interest as the Agent shall deem proper or expedient, either without security or upon the security of all or any portion or portions of the Principal’s property, whether real, personal or mixed;
5. To give, make, sign, seal, execute, acknowledge, and deliver promissory notes and other obligations, mortgages, pledge agreements, hypothecations and other securities and any such mortgage, pledge agreements or hypothecations may be with such powers of sale and/or foreclosure and may contain such other provisions, covenants and conditions as may be deemed necessary or desirable by the Agent; and to execute all documents and writing of whatsoever kind and nature in connection therewith;
6. To collect, receive, enforce payment and collection of and otherwise reduce  all  sums of money  and other  kinds  of property whatsoever that may be due, payable or belonging to the Principal, to which  the Principal  may be entitled,  or to possession,  or which lawfully should belong to the Principal;
7. To remise, release and quitclaim to all my estate, right, title and interest in any property of whatsoever kind or nature; to give, sign, seal, execute and deliver such bonds, guaranty, indemnity or other agreements or undertakings as may be necessary or proper or convenient in connection with any of the transactions hereby authorized; to vote at any and all meetings of stockholders of any corporation on any shares of stock which the Principal may own in such corporation and/ by which the Principal is entitled to vote on any and all questions, elections and other issues that may come before such stockholders’ meetings;
8. To exercise and/or claim any and all rights, options and other privileges whatsoever held by the Principal as an insured or as a beneficiary under any policy of insurance whether it be life insurance or any other insurance and to sign such papers as may be necessary in the execution thereof;
9. To prepare, sign, execute/ acknowledge or swear to and to file any and all returns for income and other taxes to any State in the U.S. and to the United States of America;
10. To prepare, make, execute, swear to or acknowledge any return, information, affidavit or report which may be required by any governmental authority, to pay all taxes, fees, assessments and other similar claims as may become due and to do and perform all things lawfully required of the Principal by authority of law; to make all reports and returns under the Social Security Act; to make charitable and other contributions which the Agent may deem wise;
11. To spend such sums of money for the Principal’s family and make advancements to members of the Principal’s family for their living expenses, education expenses and other necessary expenses;

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12. To make investments deemed wise by the Agent, including investment in any governmental bonds;
13. To make gifts of any assets to any relative of the Principal (by blood or marriage), including the Agent, provided that the aggregate amount of such gifts to any individual in any calendar year shall not exceed the sum of thirteen thousand dollars ($13,000.00), without the Principal’s prior written consent; to exercise or make an elective share and other rights or elections under probate proceedings;
14. To employ domestic servants, companions, nurses or doctors to care for the Principal; to admit the Principal or secure release from any hospital, nursing home or other health care facility; to consent on the Principal’s behalf to any treatment or surgical procedure for any injury or disease from which the Principal may be suffering; and to have access to any medical records pertaining to the Principal’s physical or mental condition or any communication/ oral or written, from any doctor, hospital or nursing home engaged to treat the Principal. Any doctor, hospital or nursing home engaged to treat the Principal may rely on this Power of Attorney in divulging information as to the Principal’s mental or physical condition. As used herein, “doctor” includes physician, surgeon, osteopath, psychologist, nurse, CNA, RN and other health care professionals;
15. To sign, execute, acknowledge and deliver any deed or other instrument of transfer or conveyance covering personal property or real estate wherever situated to the Trustee or Trustees of any Revocable Trust Agreements created by the Principal by instrument prior to or subsequent to the date of this Power of Attorney which may be amended from time to time; to prepare or arrange for the preparation of and to file all tax returns and pay all taxes required by law, including federal and state returns, and to file all claims for refund or other documents in relation thereto; and to act as Agent in the Principal’s place and stead, during the Principal’s life, with respect to the Principal’s Revocable Trust Agreement, with all authority to act in the Principal’s place and with all powers contained herein pursuant to this Durable General Power of Attorney;
16. The Principal hereby gives and grants unto the Agent full power of substitution to appoint and substitute another agent, and any such substitute duly appointed by the Agent shall have the same or more limited powers as herein given within the discretion of the Agent;
17. And generally, without any prejudice to any of the foregoing powers, the Principal hereby gives and grants unto the Agent full power to do any act, thing or deed for and in the Principal’s behalf which the Agent may deem wise and proper;
18. Do anything regarding my estate, property and affairs that I could do myself.
19. To create, fund and maintain an Income Trust pursuant to 42 USC 1396(d)(4)(B) in order to qualify me for Medicaid or any other public assistance benefits.
20.       To bring forth, file, and execute any lawsuit or cause of action afforded to me under Florida law, including the execution of any contracts for retaining attorneys, settlement of any lawsuit, or any document necessary to complete legal proceedings.

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21. To have access and to be able to obtain all medical records pertaining to the Principal’s past or future medical care and treatment, including any communication, oral or written, from any doctor engaged to treat the Principal or who has previously treated the Principal. Any doctor engaged to treat the Principal may rely on this Power of Attorney in divulging information and medical records as to the Principal’s mental or physical condition and any medical treatment previously rendered.  As used herein, “doctor” includes physician, surgeon, osteopath, psychologist and other health care professionals;
22. To have access at any time or times to any safe deposit box to which I have access, or any safe deposit box rented by me, wheresoever located, and to remove all or any part of the contents thereof; and to surrender or relinquish said safe deposit box; and any institution in which any such safe deposit box may be located shall not incur any liability to me or my estate as a result of permitting my attorney-in-fact to exercise this power.

Giving and granting unto the Agent full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as the Principal might or could do if personally present, hereby ratifying and confirming all that the Agent shall lawfully do or cause to be done by virtue of these presents.

To induce any third party to act in reliance on the continuing effectiveness and absence of revocation of this instrument, the Principal hereby agrees that any third party receiving a fully executed copy of this instrument (or any other type of copy of this instrument, certified by a Notary Public or any governmental recording clerk to be a true copy either of the original or of an executed copy of this instrument) may rely on the same and on any act of the Agent taken hereunder; and the Principal further agrees that revocation or termination hereof by operation of law or otherwise shall be ineffective as to such third party unless and until actual notice or knowledge of such revocation shall have been received by such third party; and the Principal and the Principal’s heirs, executors, personal representatives, legal representatives and assigns, hereby agree to indemnify and hold harmless any such third party from and against any and all claims that may arise against such third party by reason of such third party having so relied on the provisions of this instrument and its continued effectiveness and absence of revocation.

In the event this instrument shall be recorded in any public records, then as to persons relying on such recorded instrument who have no actual notice or knowledge of revocation, the same may only be revoked by an instrument executed in the same manner as this document and also recorded in the same public records, or by the Principal’s death or legally declared incompetency.

If it becomes necessary for my Agent to hire an attorney to induce any such institutions to rely upon this my duly executed Durable General Power of Attorney, such institution may be subject to attorneys fees and costs for their failure to accept same.

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This Durable General Power of Attorney shall not be affected by Principal’s disability, it being Principal’s intent that the authority herein conferred shall be exercisable notwithstanding any later incapacity or disability, and all acts done by Agent pursuant to the foregoing powers during any period of disability or incompetence shall have the same effect and inure to Principal’s benefit and bind Principal and Principal’s heirs, devisees and personal representative as if Principal were competent and not disabled, as provided by F.S. §709.08.

If incompetency proceedings are commenced against Principal, Principal nominates the Principal’s ____________ (relationship), ______________________ (name), if living and able to act, to be appointed as the guardian of Principal’s estate and Principal’s person.

The terms  “Principal” and “Agent” as and when used herein, or any pronouns used in place thereof, shall mean and include the masculine or feminine, the singular or plural number, individuals or corporations and each of their respective successors, heirs, personal representatives and assigns, according to the context thereof. If these presents shall be signed by two or more Principals, all covenants of such parties shall for all purposes be joint and several.

(The remaining portion of this page is intentionally left blank)

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IN WITNESS WHEREOF, I have hereunto set my hand and seal this _______day of _________ 20___.

Sealed and delivered in the presence of:

____________________                                            _____________________

WITNESS SIGNATURE                                           PRINCIPAL

____________________

WITNESS (print name)

Address:            ____________________

____________________                                                                                                                                          ____________________

____________________

WITNESS SIGNATURE

____________________

WITNESS (print name)

STATE OF _____________               )

)  SS:

COUNTY OF ______________        )

The foregoing instrument was subscribed, sworn to and acknowledged before me this _______day of _________ 20___ by ___________________, who is personally known to me or who has produced her driver’s license as identification.

IN TESTIMONY WHEREOF I have hereunto subscribed my name and affixed my seal the day and year last above written.

____________________________________

NOTARY PUBLIC, State of Florida at Large

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Printed, typed or stamped name

My commission expires: