How HIPAA can affect estate planning

HIPAA affects estate planning by requiring authorization to release personal health data after death. This necessitates explicit permission within legal documents for the sharing or accessing of an individual's sensitive health information.

Impact on powers of attorney

A power of attorney is a legal document that grants an appointed individual, the agent or attorney-in-fact, the authority to act on behalf of the person who created the document, known as the principal. This authorization pertains to various aspects, including healthcare and financial matters. 

HIPAA regulations influence powers of attorney by restricting the access and use of an individual's health information. Providing a power of attorney to the agent or personal representative allows this person to have the same Right of access to patient data as the patient. Compliance with HIPAA ensures the agent can carry out the principal's healthcare preferences, make medical decisions, and manage property matters while adhering to legal constraints. 

See also: Does power of attorney grant access to PHI?

Influence on trusts

A trust is a legal arrangement that allows a person (often referred to as the "grantor" or "settlor") to transfer assets, such as money, property, or investments, to another party (the "trustee"). The trustee manages these assets on behalf of another person or group of people (the "beneficiaries"). 

HIPAA affects trusts by limiting access to sensitive health information required to determine a trustee's capacity and competency. This presents a challenge for successor trustees in assuming trustee responsibilities.

Adjustments in estate planning documents

Making necessary adjustments to estate planning documents for HIPAA compliance requires specific language or separate authorizations for power of attorney and trusts. Specific adjustments include

1. Powers of attorney adjustments: Embed specific language within powers of attorney documents, particularly for healthcare and property decisions, granting agents explicit authority to access and make decisions based on the principal's health information.
2. Trust instrument modifications: Include language or separate authorizations in trust documents to enable the release of medical information to successor trustees, allowing them to confirm a prior trustee's incapacity and smoothly transition trustee responsibilities.
3. Secure communication: Incorporate the use of HIPAA compliant email or other secure communication methods to exchange sensitive health information. Ensure that all communication channels and platforms utilized for sharing protected health information meet HIPAA's stringent security standards
4. Provision for authorization: Include specific authorizations for the release of health information, granting access to sensitive medical data to authorized individuals or representatives, in accordance with HIPAA's explicit consent and disclosure guidelines.
5. Adherence to minimum disclosure: Incorporate provisions in the documents that emphasize the minimum necessary disclosure of protected health information to comply with HIPAA's guidelines, allowing for information access while limiting unnecessary exposure.
6. Appointment of personal representatives: Specify and designate individuals or agents within the documents who can access and manage health information under HIPAA in case of the principal's incapacitation, ensuring proper decision-making concerning healthcare or property matters.

See also: HIPAA, disability, and caregiver rights