PB Law Blog... Trusts and Stuff

Thursday, January 2, 2020

Why a HIPAA Release May Be the Most Important Document in Your Estate Plan

Happy New Year!

As we welcome 2020, I find that as an estate planning attorney, my calendar quickly fills up with consultations for potential new clients eager to “get organized” and/or to "get their affairs in order." Individuals & families seem eager to get  a positive start in the New Year and seek expert advice to get their estate plan formed and/or updated.

Many presume the single essential document is a Will or Revocable Trust. While a Will (or more importantly Trust) is critically important, the most important document may be one you haven’t heard of- the HIPAA Authorization (or HIPAA Release).

What is a HIPAA Release?

The HIPAA Release protects you in case you become incapacitated or unable to make decisions because of an illness/incapacity.  It protects your rights, allows you to remain in control of your wishes when at your most vulnerable, and helps protect your dignity.

HIPAA stands for the “Health Insurance Portability and Accountability Act” of 1996- a federal law that protects the sharing of an individual’s medical information. Information obtained and recorded in hospitals, doctors’ offices, or any other place where an individual can seek and receive medical treatment is protected as confidential under this law.

HIPAA was founded on two main principals-  First, a patient has a right to privacy of their medical information and can limit access to their medical records. Second, health care providers owe a duty of confidentiality to the patient and may not disclose medical information to others without the patient’s consent.

Why is a HIPAA Release so important?

Practically, many patients are often assisted by family members / friends/ partners and/or other caregivers when making medical decisions.  For instance, a family member may help with meal preparation, and must be kept informed of dietary restrictions due to a medical condition or assist with administration of prescriptions.

The law allows health care professionals to share medical information with others if the patient gives informed consent (if the patient is awake caregivers if the patient is awake, has a reasonable understanding of the situation, and can decide if they want their information shared). A HIPAA release put in place while you are healthy is key to ensuring that your family members will be able to discuss your health care with appropriate medical personnel if you are subsequently unable to give informed consent.

As an estate planning attorney, I draft HIPAA releases as part of an estate plan as a general practice.  Family members may be able to notice certain symptoms much earlier long before a formal diagnosis (i.e. in dementia situations).  If the family members are authorized to communicate freely with the patient’s health care professionals, they can flag their concerns to the appropriate doctor who will then hopefully be able to offer treatment options as early as possible, which could prove lifesaving.

For example, if a family member notices early symptoms of a degenerative diagnosis (such as Parkinson’s), and notifies their loved one’s doctor as soon as possible, that doctor may be able to recommend early intervention options that would drastically improve the patient’s overall quality of life.

Another example is when a family member notices signs of later (undiagnosed) dementia.  They may be concerned as to their loved one’s ability to drive a car or to properly manage their finances.  A HIPAA release would be fundamentally important fin this situation so that the family member can start taking the steps to protect the patient by appointing the proper decision-makers to act as successor trustee, power of attorney, etc. 

A HIPAA Authorization is one of the many documents included in a comprehensive estate plan. By itself, it alone will not do much (as it is simply an information release).  However, used in conjunction with the rest of the Estate Plan documents, it helps to ensure that you remain in control of your health care while granting those closest to you access to the proper health care professionals to share useful information so that your doctors can give you the best treatment possible.

For more information, contact our office to schedule a conference to review your planning goals and options.

-by Tiffany Ballenger Floyd, Esq. © 2020, Phillips Ballenger, PLLC

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