Health Insurance Portability and Accountability Act and Stethoscope

Signing a HIPAA Release as Part of Your Estate Plan 

Law Office of Robert L. Firth Sept. 29, 2022

For many people, the process of estate planning begins and ends with the creation of a last will and testament. Taking care of their family and loved ones are often the primary goal of people’s estate planning. However, those who create wills also have a future to look forward to and need to take steps to make sure that all the bases are covered going forward, not only for their families but for themselves as well.  

What happens if you suffer a setback and can’t manage your personal and financial affairs on your own, or you become incapacitated and end up laying in a hospital bed, unable to voice crucial healthcare decisions regarding the treatments you’ll accept and those you want no part of? 

In short, estate planning exists not only to provide for those you love once you’re gone but also to put plans and legal instruments in place to help you should life hand you a setback. For these reasons, your estate planning should embrace options to have agents, or representatives you’ve named, to make crucial decisions for you when you cannot because of health or other reasons. 

These legal instruments include a living trust, a durable financial power of attorney, and a living will, or what is known as an advance healthcare directive. When you have these in place, or a combination of them, you can rest assured that trusted family, friends, or associates will be there to step in for you when you need them to make decisions for you – and that they will make those decisions according to your wishes. 

The caveat here is that, though many people end up executing these legal documents, they overlook the possibility that, when it comes to healthcare issues, their designated agents may be denied access to their health records, or even billing information, because of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA protects your personal health information (PHI) from access by those whom you have not directly authorized. 

If you’re just starting on the estate planning process, or need to review what you have in place, and you’re located in or around Cathedral City, California, contact the estate planning attorney at the Law Office of Robert L. Firth. Since 1994, we have been advising clients on their estate planning needs and helping them create the legal instruments to provide peace of mind for everyone involved moving forward. 

The Law Office of Robert L. Firth proudly serves the needs of all Californians, not only in Cathedral City but also in the Coachella Valley, Palm Springs, Palm Desert, Desert Hot Springs, Rancho Mirage, and surrounding communities. 

HIPAA and Estate Planning 

To plan for your own future and to have trusted people in place to care for your financial and healthcare matters when you cannot, you should consider creating a living trust, a durable financial power of attorney, and an advance healthcare directive. 

A living trust, in which you place all your assets, remains under your control until you become incapacitated, at which time the successor trustee named in your document takes over.  

Generally, this transfer of authority may be sufficient when it comes to paying bills and managing cash and other assets, but even so, you should consider granting your successor trustee a durable financial power of attorney (POA). The POA will guarantee access to all financial records, assets, debt obligations, and investment and bank accounts. 

However, when it comes to medical records and billing, the successor trustee may run into difficulty because of HIPAA. The same holds true when you name a healthcare agent to make medical decisions for you when you cannot. Your living will, or advance healthcare directive, will not only name the agent but also specify which treatments you will and won’t accept, such as being put on permanent life support. 

Here again, however, HIPAA may prevent the attending physician from sharing your medical records with your agent, which could be vital to making a crucial decision regarding your treatment. 

Granting HIPAA Authorization 

Therefore, along with a living trust, a power of attorney, and a healthcare directive, you should execute a HIPAA authorization for the person or persons you’ve designated in these instruments. The U.S. Department of Health and Human Services (HHS), which administers and enforces HIPAA, sets the following standards for a valid HIPAA authorization. The document must: 

  • Name the person granting the authorization and the person being granted authorization 

  • Include a “meaningful description” of the information to be disclosed 

  • Contain a statement of the purpose for disclosure of your PHI (“at the request of the individual” named as the agent is sufficient) 

  • Include a permission to redisclose authorization if so authorized 

  • Include an expiration date 

  • Be signed by both the grantor and the personal representative (agent or trustee) 

Prepare for Tomorrow. Call Now. 

If you still haven’t started the estate planning process, you can never be too young or too old to do so, but you can be too late. So, the time to start is now. Remember, estate planning is not only for the sake of your family and loved ones but also for you and your future should the unexpected happen. Comprehensive estate planning should provide all involved with peace of mind moving forward. 

Schedule your free consultation today by calling us at the Law Office of Robert L. Firth. We’re located in Cathedral City, but we proudly serve clients from throughout the area.