HIPAA and Estate Planning

Health care decision-making is a central concern of estate planning. Access to a loved one’s medical records may be necessary to make appropriate health care decisions. Protections for medical records are becoming stricter of late due to new civil penalties for wrongful disclosure of records. As a result, hospitals and clinics are becoming much more guarded about access and disclosure to health information. This can be a sticking point for trustees and executors attempting to carry out their duties. When should HIPAA authorizations accompany estate planning documents?

A medical record folder being pulled from the ...
(Photo credit: Wikipedia)

1.)    Springing Powers of Attorney. “Springing” powers of attorney give a designated person certain decision-making powers when some event occurs. Usually, the event is death or incapacitation. For example, the health care power of attorney’s power only springs into action when incapacitation occurs requiring another person to make health care decisions. A HIPAA authorization should accompany the power of attorney documents. This authorization bypasses typical delays in obtaining medical records and can help inform health care decisions for a loved one.

2.)    Living Trusts with a Successor Trustee. Often, a living trust is used to allocate certain assets and keep them separate from a person’s general assets. This can protect the assets from lawsuit or, in the event of death, probate. The assets in a living trust may remain under the control of the owner. A successor trustee is named in case the owner becomes incapacitated or otherwise unable to manage the trust assets. Successor trustees need access to a HIPAA authorization. Generally, two physicians must opine that a person is incapacitated before a successor trustee may assume the duties of trustee. Without access to the original trustee’s medical records, proving incapacitation can be very difficult. A HIPAA authorization should state that the successor trustee has access to the original trustee’s medical records so administration of the trust can continue seamlessly.

A copy of the HIPAA authorization should remain with the power of attorney or successor trustee. Another copy goes to relevant health care providers so they have one on file. This can expedite things considerably if the authorization is already in the treating doctor’s possession.

If you have questions about preparing HIPAA authorizations or estate planning documents, feel free to contact us at (626) 696-3145.

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