HIPAA and Your Estate Plan

Over the last few years we’ve had a number of people share their frustrating stories from medical emergencies. A mother whose 18-year-old daughter was away at college in another state got into a car accident and landed in the hospital. Mom called the hospital four times and they refused to tell her whether or not her daughter was okay. She had no idea whether she needed to hop on a plane and be with her daughter on her deathbed. We have a client whose next-door neighbor called the ambulance for his wife and the ambulance driver refused to tell the husband what hospital they were taking his wife to. There’s a case I’m aware of in Denver where the husband called the ambulance for his wife and it took him three days to find her, as none of the hospitals would admit to having her. What do these cases have in common?

The Health Insurance Portability and Accountability Act (HIPAA) passed by Congress and enacted over the last decade has been more far-reaching than it was initially thought to be. Health providers and health plans are legally required to follow this act, which includes protecting the privacy of health records and information contained in a patient’s file. But did you know that this legislation impacts your family and estate plan?

The legislation has been implemented through the years, with the most significant portions of the Act taking effect in 2000 and 2003. Specifically, HIPAA mandates a health care provider to have written authorization from a patient to release identifiable medical information to anyone other than the patient or the person appointed under state law to make health care decisions on their behalf. This HIPAA regulation not only impacts health care, but estate planning as well, as it can be an obstacle to obtaining information about a patient’s disability, medical condition or capacity. This is a particularly important issue when it comes to determining capacity and when to implement certain estate planning documents that have been prepared for use in the event of incapacitation.

It is important to review trust documents, buy-sell agreements, powers of attorney and all estate planning documents for any situation that depends on a physician’s determination of disability or that requires a person to acquire health information from a doctor or other health care provider. Often a disability or incapacitation provision will require an individual or entity to obtain health care information from a physician to enforce a triggering event such as a springing durable power of attorney.

While many recently prepared estate planning documents will take the HIPAA privacy rules into account, assuming they were prepared by an estate planning attorney, documents prepared before 2003 should be reviewed, not only due to HIPAA, but to ensure they are current with other laws as well as life changes.

Our firm prepares a Universal HIPAA Release for each client, clarifying that the listed persons are always authorized to access your medical information. This ensures that your loved ones will not be shut out if you are the one who lands in the hospital. Everyone over the age of 18 needs to have this document in place.

An estate planning attorney can prepare or review your estate planning documents, such as a Trust, a Will or a Medical Power of Attorney, to not only ensure they take current laws into consideration, but to make sure they meet the needs of you and your family as well.