Recent federal laws and regulations have created new privacy protections for your medical information. These laws are known as “HIPAA” (Health Insurance Portability and Accountability Act). Now physicians, hospitals, health insurers, and other “covered entities” must comply with strict rules or face fines and potential criminal penalties. An innocent mistake would incur a fine of $100. More serious breaches of privacy, such as releasing information for malicious harm, could result in fines of up to $250,000 and 10 years in prison. Understandably, health care providers are being extremely careful about the release of medical information in the face of such penalties.
Keeping your medical information private is a laudable goal. None of us wants our personal medical history to be the subject of office water cooler gossip or sold to the highest bidder. However, there are circumstances in which we may want some people to have access to our medical information. For example, if you check into a hospital and do not authorize release of medical information, the hospital will not release information about you to anyone. In fact, the hospital will tell callers that they have no information about you. This could leave family members searching for you and unable to find out where you are or how you are doing. (In this event the HIPAA privacy hotline, (866) 627-7748, may be of some assistance.)
This privacy rule also can thwart an otherwise well-implemented estate plan. Agents under powers of attorney and successor trustees typically do not have authority to act for you unless you are unable to make decisions for yourself. The powers of attorney and trusts provide that a certification from your physician(s) is determinative of the issue. However, your physician(s) will not certify your incapacity unless you have authorized the release of medical information. Of course, if you lack capacity, you cannot authorize the release of medical information. So, there is a Catch-22. Without the release of information, your Agents or successor trustees cannot establish your incapacity. Without establishing your incapacity, they cannot step in to take care of you and preserve your assets.
But, there is a solution. You can sign a HIPAA Authorization form that allows release of medical information to your agents and trustees, your family, and other people whom you designate. Note, this is different from the Health Care Power of Attorney, which appoints someone to make medical decisions for you when you are unable to do so yourself. By law, the HIPAA authorization must be a separate document. With such an authorization, those closest to you can obtain necessary medical information about you.
A qualified estate planning attorney can help you make sure that your privacy is not overprotected, so that those closest to you can get the information they need to accomplish your goals.
Morrison Law Group, PLC has devoted its practice to estate planning and elder law matters for more than 18 years. We are members of the American Academy of Estate Planning Attorneys and offer guidance and advice to our clients in every area of estate planning. We offer comprehensive and personalized estate planning consultations. To learn more about how you can achieve your estate planning goals, please call (504) 831-2348 or visit our website at www.morrisonlawplc.com.
- Now Hiring! Administrative Legal Assistant - September 24, 2023
- Aging Parents and Estate Planning - September 21, 2023
- Estate Planning – Something You Shouldn’t Do Yourself - September 18, 2023
