Most people understand that having a comprehensive estate plan in place is an essential responsibility to ensure your family is cared for after you pass and that your wishes are followed. However, not everyone has taken the steps to begin this process or to ensure their estate plan is up to date and complete. One component of this that’s often overlooked concerns your health care wishes—specifically, signing a HIPAA release as part of an estate plan. If you’d like to speak to an estate planning attorney about this or any other aspect of your will, trust, or advance directive, reach out to The Law Office of David G. Bale in Westerville, Ohio. David Bale has been practicing law since 1982 and can serve clients throughout Delaware County and Franklin County, including Worthington and New Albany.
Understanding HIPAA
Central to the issues surrounding your medical wishes is the Health Insurance Portability and Accountability Act of 1996, commonly referred to as HIPAA. HIPAA protects the privacy of patients by limiting what health information may be disclosed without their consent. This law applies to almost everyone working in the healthcare industry—including doctors, nurses, dentists, specialists, or pharmacists—and limits the amount of medical information they’re allowed to share with third parties. Essentially, they can only share information that’s needed to protect public health and ensure the highest quality of care for the patient. It also includes a Privacy Rule that informs patients on how their information is being used and allows them to control this.
Why It’s Important in Estate Planning
There are a few estate planning documents that allow you to stipulate your wishes for medical care should you become incapacitated or unable to communicate your wishes. If you have a trust in place, durable powers of attorney, or an advance directive, you need to be aware of how signing a HIPAA release can allow your family access to medical information.
Powers of Attorney
A power of attorney document allows you to name an individual who can make financial and medical decisions on your behalf if you’re no longer able to do so. This can be a trusted friend, family member, or an attorney. If you do become incapacitated, the person you assign to this role can refer to your advance directive for guidance on what procedures you do or do not want and what kind of end-of-life care you want. However, these directives cannot possibly cover every eventuality and decisions will need to be made on your behalf that aren’t covered in your directive. Under the HIPAA guidelines, your healthcare providers may be reluctant or unwilling to share vital information with this person unless both of you have signed a HIPAA release ahead of time. It’s possible that your current powers of attorney document includes this provision already, but you should always consult with a knowledgeable attorney to find out for certain.
Trusts
Trusts are an incredibly useful way to make your estate administration run more smoothly after you pass, but they can only work if your trustee and successor trustee are able to assume their roles as administrators. With a trust, you move certain assets into the name of a trustee while you’re still living so that when you pass away, the assets don’t have to go through probate and can instead be transferred directly to your named beneficiaries. However, if something happens to your trustee and they become incapacitated themselves, your successor trustee cannot step into their role unless they’ve received medical confirmation from a healthcare provider, and this can only be done through a HIPAA release.
Who Needs to Sign a Release?
Essentially, anyone who’s named in your will or estate plan that you trust to know vital medical information about you should sign a release. At a minimum, this means you and your executor (also called a personal representative) should sign one as well as the person you’ve named as powers of attorney. If you have a different person named in an advance healthcare directive, they should also sign a release as well as any family members who may be in a position to help. This does not mean you should have everyone you know sign a release, but you should think critically about who may need to know this information in order to make informed decisions on your behalf.
Estate Planning Tailored to You
No one likes to think of their own mortality. While estate planning isn’t the most enjoyable process, by addressing these concerns while you’re still of sound mind and body, you’ll ensure your loved ones are put in a favorable situation moving forward. If you’re in the Westerville, Ohio area and would like to know more about how HIPAA guidelines may affect your estate plan, call The Law Office of David G. Bale to schedule an appointment.