What is HIPAA, and How Does it
Affect Estate Planning?

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 was enacted to protect patients’ privacy rights. HIPAA language should be included in your Health Care Surrogate, Durable Power of Attorney and other documents. Here’s why:

HIPAA calls for fines and even imprisonment for medical providers if they release information about patients to unauthorized parties. While protecting privacy, HIPAA can make it more difficult, and often impossible, for people to obtain medical information about loved ones.

Medical providers include not only doctors, but also physical therapists, pharmacists, nurses  – anyone in the medical services business.  Everyone’s for privacy, of course, but incidents have occurred around the country, including Florida, in which relatives cannot even confirm if a loved one has been admitted to a hospital.

Can I Get Access to Medical Records if I’m the Successor Trustee of That Person’s Living Trust?

If you become disabled, your successor trustee under your Living Trust can act on your behalf only if your health care provider attests that you are in fact, incapacitated.  Obviously, your documents will need to authorize release of that information to your agent or trustee under HIPAA guidelines. In the absence of such written authorization, your physicians may be unwilling to release medical information about you. In such a scenario, court proceedings would have to be initiated in order to substantiate your incapacity.

In order to ensure that the people of your choice are authorized to get the information they need and can make informed decisions on your behalf, your Health Care Surrogate should include specific reference to HIPAA.  The language should authorize the release of information to your health care agents. If you have a Revocable Living Trust, this too should include HIPAA language.  This will put more “legal muscle” into your wishes and ensure that your agents can act on your behalf.

Please contact the elder law attorneys at The Karp Law Firm to have your health care documents prepared or if you have existing advance directives that need to be updated for HIPAA compliance.

Learn more about our Health Care Planning Practice:

  • Health Care Planning
  • Types of Advance Directives

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