HIPAA Authorization And Estate Planning

An older male doctor with a stethoscope around his neck and a white coat holds a HIPAA authorization in his right hand as he speaks into a cell phone in his left hand.

HIPAA Authorization And Estate Planning

When people think of creating an estate plan, they typically think first of death. While this is one of the primary purposes of an estate plan, there is much more to it than that. For many people, significant illnesses or unexpected injuries may precede their death. With those injuries and illnesses, people can often become incapacitated and unable to speak for themselves regarding their condition, treatment, or the choices they would like to make. When that happens, they must rely on others to speak for them. This is where Health Insurance Portability and Accountability Act (HIPAA) authorization and estate planning work together. By including a HIPPA release in your estate plan, you can ensure that any decisions your loved ones must make on your behalf are informed and aligned with your wishes. A knowledgeable Florida attorney may be able to assist you with ensuring your estate plan is complete with the appropriate authorization forms, including HIPAA. Call Loughlin Law, P.A. at (561) 677-8384 to schedule a consultation and learn more about the documents you may need in your estate plan.

What Is a HIPAA Authorization and Why Is It Important in Estate Planning?

HIPAA is a federal law that protects people’s personal information, including medical information, from being shared with others who do not need it. This law prevents healthcare professionals, including doctors, hospitals, and pharmacies from sharing a patient’s protected health information with individuals or entities that do not need the information. HIPAA also applies to health insurance providers, healthcare clearinghouses, and any other entities that that perform HIPAA-covered transactions. However, this law that protects your information from a stranger or an entity that does not need it also prevents loved ones who may need it from accessing it.

By providing a HIPAA authorization, individuals allow others access to medical information that may be needed to make decisions on their behalf. This access also allows loved ones to access and pay medical bills associated with the individual’s treatments and can also allow a successor trustee to determine incapacity by verifying personal medical information when taking over a trust. A HIPAA authorization can work in combination with a revocable living trust or advance directive, and it is often recommended as good practice to sign a HIPAA release when giving someone healthcare power of attorney.

What Elements Does a Valid HIPAA Authorization Contain?

A HIPAA authorization is a very specific document. Individuals cannot simply write on a piece of paper that they are giving another person authorization to access their healthcare information. Instead, the form must contain:

  • The name of the doctor authorized to share information
  • The name of the person allowed to access and receive medical information
  • A description of the information permitted to be shared or disclosed
  • An expiration date or timeframe during which the form is valid
  • A statement of the individual’s right to revoke the authorization
  • A statement that the information shared may be subject to redisclosure
  • The date
  • The name and signature of the person authorizing the disclosure

HIPAA authorizations can be limited to share extremely specific information, such as disclosing only information related to a specific diagnosis or even a specific treatment or appointment. They can also be broader and allow access to all of the individual’s medical information. The Florida Department of Health offers an authorization form that includes all the required information that can be used, though individuals may wish to discuss other options with their attorney to ensure that this form is most suited to their needs.

What Is the Difference Between a Healthcare Power of Attorney and a HIPAA Authorization?

While a healthcare power of attorney and a HIPAA authorization work together, they are two separate documents that serve different purposes. A HIPAA form authorizes the named healthcare provider to disclose private medical information to the individual named on the form and limits the information to only the necessary information. This form does not allow the individual receiving the information to make any decisions on behalf of the person who signed it.

A healthcare power of attorney authorizes the named individual to make medical decisions on behalf of the person who signed it. This form may also contain a HIPAA waiver, which waives the individual’s right to privacy and allows healthcare providers to share information with the named individual. The Florida Bar recommends signing a durable healthcare power of attorney. A durable healthcare power of attorney prepares for unforeseen future events, such as the individual not being able to communicate or make their own decisions due to injury or illness. The individual can also use the power of attorney to detail their wishes for medical decisions, though for more detailed wishes such as life-prolonging procedures, terminal condition treatments or persistent vegetative state instructions, a living will may be more appropriate. At Loughlin Law, P.A., our experienced estate planning attorneys may be able to assist you in determining the appropriate forms to accompany your HIPAA authorization and healthcare power of attorney.

How Does Not Having a HIPAA Release Affect an Estate Plan?

HIPAA authorization and estate planning are two things that everyone should be thinking about and ensuring they have in place. HIPAA regulations affect living wills, healthcare surrogates, healthcare powers of attorney, and even trusts where medical and healthcare information may be required in order to properly administer them. Further, HIPAA restricts everyone’s access to an individual’s medical records, including the individual’s spouse, parents, and children. Without a signed HIPAA authorization, no one will have access to the individual’s medical information.

In the event that the individual is incapacitated and unable to speak for themselves, someone else must speak for them. Usually, this is someone that they have given a healthcare power of attorney to. Without a HIPAA release, if the healthcare power of attorney does not include a HIPAA waiver, the person granted power of attorney may not be able to get access to all of the medical information they may need to make informed decisions. Additionally, if there is a trust and the grantor is the trustee, their successor trustee will need a HIPAA authorization in order to verify the grantor’s incapacity before the successor trustee can take over.

How Can an Estate Planning Attorney Assist You with Your HIPAA Authorization Needs?

HIPAA authorization and estate planning both require filling out documents to plan for future possibilities. A HIPAA release gives someone you choose access to your protected health information which, when combined with a healthcare power of attorney, allows them to make medical decisions on your behalf. Your estate plan allows you to ensure your assets are passed on to loved ones the way you intend, while also planning for possible future incapacitation. Including a HIPAA release as part of your estate plan can ensure that your family is able to make the difficult decisions that may be asked of them in the way that you would have wanted. By giving them access to your protected health information, you ensure they have all the information they need to ask themselves what you would want, if you have not already specifically outlined your wishes in a living will or other document. If you need assistance with your estate plan and ensuring that all the appropriate documents, including a HIPAA release, are included, Loughlin Law, P.A. may be able to assist you. Our seasoned Florida estate planning attorneys may be able to help you develop a comprehensive estate plan, or review and update an existing one, so you can feel confident that everything is under control. Call (561) 677-8384 to schedule a consultation.

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