Should I Include a HIPAA Authorization in My Estate Plan?

Estate planning is the process by which individuals create a comprehensive plan to protect their assets, avoid probate and estate taxes, and determine who will receive their assets after they pass away. An estate plan can contain various elements, but one component is HIPAA authorization, or allowing another person to receive your personal medical information if you become incapacitated or otherwise unable to do so. An estate planning lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. can evaluate your situation, present the full range of options available to you, and help you make the best choices for you and your family.

Understanding HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that outlines the rules for sharing and accessing your protected health information (PHI). PHI relates to physical or medical health conditions, medical care and treatment, and payment for medical treatment.

Healthcare providers, insurance plans, and many other entities are subject to HIPAA. Under HIPAA, healthcare providers can only provide PHI to the minimum extent necessary for treatment or payment. Violations of HIPAA can lead to monetary penalties and even criminal charges in some cases.

Reasons to Include HIPAA Authorization as Part of Your Estate Plan

If you become incapacitated or unable to make medical and other decisions, you may want specific trusted individuals to make those decisions for you. All estate plans should include a durable power of attorney and healthcare surrogate designation to address this issue. However, you should also include HIPAA authorization as part of those documents so that the persons you designate to make decisions on your behalf can access your PHI.

For instance, your power of attorney may need to pay your medical bills, and medical providers cannot provide billing information to your power of attorney without HIPAA authorization. Likewise, if you have no HIPAA authorization in place, your designated healthcare surrogate may not be able to obtain information about your physical and medical (?) health conditions sufficient to make informed decisions about your medical care.

Likewise, if you have created a living trust and you become incapacitated, the person whom you have named as successor trustee must take over the administration of the trust and distribution of assets. If your healthcare provider doesn’t have a HIPAA release for the successor trustee, then the healthcare provider cannot advise him or her of your incapacity, which prevents him or her from establishing the incapacity and taking over the administration of the trust.

The bottom line is that medical providers and insurance plans cannot provide your PHI to anyone, even if they are acting on your behalf according to a power of attorney. At the same time, you may no longer be able to provide that authorization.

 Incorporating HIPAA Authorization into Your Estate Plan

You can execute a stand-alone HIPAA authorization document or incorporate a HIPAA authorization into any appropriate estate planning documents as needed. For example, suppose you choose to incorporate a HIPAA authorization into your durable power of attorney. In that case, you must comply with both HIPAA regulations and Florida’s Health Care Advance Directives statute, found in Florida Statutes §765.202. In other words, the durable power of attorney must be drafted to both survive your incapacity and include a HIPAA-compliant release.

Similarly, a living trust must contain a HIPAA authorization allowing the successor trustee to access the trustee’s PHI to establish incapacity. The HIPAA authorization permits the successor trustee to get enough information about the trustee’s medical condition to assume administration of the trust.

In some respects, it may be easier to create a separate HIPAA authorization document that covers all contingencies simply because it is easier to update. Under Florida law, a HIPAA authorization is valid and effective for only 24 months. Therefore, you will find it easier to update one HIPAA authorization every 24 months rather than updating multiple documents containing separate HIPAA authorizations.

Contact Our Office Today for Your Estate Planning Needs

At Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., an estate planning attorney can provide a full range of estate planning services, including will and trust execution. In addition, if you lose a loved one, we are here to assist you with all estate, probate, or trust administration needs.

We can guide your family through the complicated legal landscape of estate planning law as quickly and efficiently as possible. Call us at (954) 966-2112 or learn more about the legal services we can offer you online. Please schedule an appointment to talk to us about your legal needs immediately.

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