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Friday, February 14, 2020

HIPAA and Estate-Planning: Three Things You Should Know in 2020

A comprehensive estate plan includes directives related to incapacity and health care. If you do not include an incapacity plan in your estate plan, your loved ones may be required to petition the court for the authority to make decisions regarding your personal care and health care. Furthermore, the court and your family members could ignore your wishes and desires unless you put them in writing now.

Working with a Texas estate planning attorney to address HIPAA and estate planning issues can help ensure that you remain in control of your health care decisions even if you cannot speak for yourself. It also ensures that your family has access to your medical records in the event of an accident, injury, or illness that results in your incapacitation.

What is HIPAA?

HIPAA (short for Health Insurance Portability and Accountability Act of 1996) protects a patient’s private health information. HIPAA laws require medical providers to establish policies and safeguards to ensure that a patient’s health data is protected. The law also provides strict rules about when a health care provider can share information about a patient.

Patients can authorize the release of health care information by signing a HIPAA authorization. The authorization gives a health care provider authority to release personal health information according to the terms and conditions in the authorization.

For a HIPAA authorization to be valid, it must contain certain information. The authorization must also be written in plain language. Information that must be included in a HIPAA authorization:

  • The name of the provider that is authorized to disclose the private health information;
  • The name of the person or entity who is authorized to receive the information;
  • A description of the health information that may be shared or disclosed;
  • The purpose of the disclosure;
  • A specific time frame and expiration date for the authorization; and,
  • The name, signature, and date of the individual giving the authority.

The law also requires that a HIPAA authorization contain certain notices, such as the right of the person to revoke the authorization.

Three Things You Need to Know About HIPAA and Estate Planning

1. Your Health Care Power of Attorney Should Comply with HIPAA Regulations

A health care power of attorney, living will, and other health care directives grant an agent the authority to make medical decisions for another person. Even though your agent may have a valid health care power of attorney, a medical provider may be unwilling to provide private health information without a signed HIPAA authorization. To ensure that your agent has the information necessary to make informed medical decisions on your behalf, a health care power of attorney should have a HIPAA authorization that complies with all HIPAA laws and regulations.

2. A Power of Attorney Without a Durability Clause is Useless If You Become Incapacitated

A general power of attorney ceases to be useful when a person becomes incapacitated if the power of attorney does not contain a durability clause. The durability clause is separate from a HIPAA authorization. The durability clause states that the powers granted within the power of attorney remain in full force and effect even though the grantor may become incapacitated.

3. Trust Agreements May Also Need a HIPAA Authorization

Trust agreements often contain a clause that provides for the appointment of a successor trustee if the trustee (who might be the settlor) becomes incapacitated. However, it can be difficult to know if a trustee is incapacitated according to the terms of the trust agreement without certain medical information. A HIPAA authorization allows the successor trustee to verify personal health information so that he or she can assume the duties and responsibilities of trustee if necessary.

Contact Our Texas Estate Planning Attorney for More Information

Medical providers are very careful to follow all HIPAA regulations because violations of HIPAA laws can result in severe penalties and fines. Therefore, it is best to work with an experienced Texas estate planning attorney when developing your estate plan to ensure that your plan includes all documents and clauses necessary to comply with HIPAA laws so that your agents and family members have access to the information they need in an emergency. Contact the Law Office of Carey Thompson today to learn more.


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