Can a family member obtain the medical records of an incapacitated patient?

Yes.

Case Study: In re: Guardianship of Roseanne C. (NYLJ, 11/14/2022, p.21)

In this case, the Surrogate's Court, Suffolk County, appointed guardians for Roseann C., an 84-year-old with Alzheimer's disease, who was "adjudged incapacitated to make sound financial decisions." The guardian filed a petition to obtain Roseanne's medical records to determine the extent of her current medical complications. The hospital objected, citing HIPAA.

The court noted that HIPAA generally prohibits providers from disclosing patients' medical records without their permission, but this rule is subject to certain exceptions, including when a patient is incapacitated. Here, the court pointed out that Roseanne's incapacity had already been established, and the guardian had a legal duty to act in her best interests. This included, the court held, obtaining her medical records to be properly informed about the medical circumstances affecting her. Accordingly, the court directed the hospital to provide Roseann's medical records to the guardian.