Aug 31, 2011

Is your estate plan HIPAA-compliant?

Are you hip to HIPAA?  The 1996 federal Health Insurance Portability and Accountability Act has profound implications for the effectiveness of your estate plan. Yet there many individuals with older estate plans who have yet to update their documents to make them comply with HIPAA law. If you're one of these people, your health care providers may refuse to release information about you to the people you want to have the information.

HIPAA was passed in 1996, giving health care providers until April 14, 2003 to comply. The law,  designed to protect patient privacy, restricts to whom health care providers can release information. Fines for infractions can range from $100 to millions, and may even include prison time. By way of example, last year Rite Aid was fined $1 million for putting written information with patients' names in an industrial trash container accessible to the public. 

Privacy is a good thing, of course. However, HIPAA's chilling effect on providers has resulted in some extreme scenarios, for example, hospitals refusing to even confirm or deny if they've admitted a family member. The law can also throw a monkey wrench into an estate plan that while otherwise sound, is not HIPAA compliant. From an estate planning perspective, HIPAA language should be incorporated into your Revocable (Living) Trust as well as your Durable Power of Attorney. That way, if you become incapacitated, your Successor Trustee under your Trust and your agent under your Durable Power of Attorney will be able to secure verification of your incapacity from your physician and begin managing your affairs with minimal disruption. This is especially important if your Successor Trustee and agent are not the same person(s) serving as your health care agent under your Health Care Power of Attorney.

To contact our Certified Elder Law/Estate Planning attorneys to review your documents for HIPPA compliance, click here.

For detailed information on HIPAA privacy rules, click here.

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