HIPAA Privacy Rule Requires Updates for Some Estate Planning Documents

HIPAA (Health Insurance Portability and Accountability Act) was designed to provide privacy protections for medical records.  This includes specific prohibitions on sharing medical records with anyone who does not have authorized access.  When a healthcare provider fails to protect patient privacy, they may be subject to fines and sanctions.

For this reason, a physician, hospital or even insurance company may be constrained from sharing patient records with anyone who is not specifically authorized, including family members.  In estate planning there are certain documents that need to contain privacy waivers to ensure that the individuals wishes are carried out.  It should be noted that any waivers or authorizations for medical record access should also include language that allow the information to be re-disclosed to other parties if necessary.

Power of Attorney and Living Wills

Living wills control the end of life decisions that may include medical care.  In some situations, the patient is not conscious or otherwise able to give the necessary permissions for medical care or access to records.  The best way to insure that patient medical records are available is to have a Power of Attorney (POA) or Living Will that specifically grants access to medical records for named persons or ‘agents’ in the POA.

Those agents in the POA can then make decisions on behalf of the patient if that is necessary, including accessing their medical records.  If an agent is named in reference to a HIPAA privacy waiver, the term ‘personal representative’ should be used to ensure that the waiver is clearly expressed using HIPAA language.

Some of the elements that would meet the HIPAA criteria for access to medical records include specific statements that healthcare providers and insurers can release medical records directly to the named agent in the POA.  The POA should contain specific references to HIPAA to ensure that the privacy standards are met, and to allow healthcare providers to release the information without concern of violating HIPAA.  The safest thing to do is include an ‘express waiver’ of HIPAA privacy standards within the POA.

Revocable Living Trusts

Revocable living trusts are used by many people for estate planning purposes, and will become irrevocable in the event of the original creator of the trust is unable to make decisions.  Most living trusts have provisions for successor trustees to manage the trust, who would replace the original trustee in case of mental incapacity.  In that instance, the successor trustee would need to have access to medical records of the trustee to confirm incapacity by independent physicians.  Unless there is an express privacy waiver in the trust, HIPAA could prevent access to the medical records needed to establish the changes in trustee.

In some cases, it could be more advantageous to create separate written authorizations giving access to records under HIPAA, and then attaching those to the documents as amendments.  This would avoid the only remaining remedy, which is a conservatorship proceeding in court.

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