Your HIPAA Booster Shot

Consider it a vaccine for your medical privacy. The 1996 Health Insurance Portability and Accountability Act requires your medical providers to take steps to protect the confidentiality of your medical records. Now, you're getting a booster, thanks to the U.S. Department of Health's new rule requiring health care providers who do not encrypt their records to promptly notify you of any breach of confidentiality.

All vaccines have the potential for side effects, and HIPAA is no exception: Its passage has had a significant impact on estate planning, too. Here's why:

Your Health Care Power of Attorney allows one or more persons to make medical decisions on your behalf if you are unable to make them yourself. Obviously, to make informed decisions, your agent need to be able to communicate with your physicians. That's why your Health Care Power of Attorney should include HIPAA language. I recommend that this language be part of the document even if you've signed a privacy release statement with your primary physician, since your health care power of attorney applies to all doctors, hospitals, etc., from whom you may receive treatment, now and in the future.

And don't neglect your revocable trust; it too needs HIPAA language to be effective. The inclusion of HIPAA-specific language will authorize your doctors and other medical providers to talk with your successor trustee(s). Your successor trustee can then request certification that you are in fact incapacitated and thus, seamlessly step into your shoes and handle your affairs.

If your documents predate HIPAA, see a certifed elder law estate planning attorney about creating documents that include HIPAA-specific language. Even if your documents were drafted after 1996, you should have them checked; in my experience, not all attorneys who drafted documents after 1996 included HIPAA language.