HIPAA as part of your Estate Plan

A comprehensive estate plan should include a Durable Power of Attorney, a Health Care Directive, and a blanket HIPAA release.  HIPAA, the Health Insurance Portability and Accountability Act of 1996 created the health information privacy requirements for providers of health care services.  HIPAA's privacy rules prohibit health care providers from sharing patients' private health information with anyone whom the patient has not authorized to receive such information.

A Health Care Directive appoints an Agent, and often alternative agents, to make decisions for the Principal. The Principal is the person granting the decision-making powers to an Agent.  The Agent appointed in the Health Care Directive is generally considered to be authorized to receive the principal's private health information when the Principal is deemed not able to handle his/her own affairs. That makes sense. We wouldn't want your Agent making decisions without knowing the Principal's health care situation.  That would be dangerous.

Some people believe that the Agent doesn't have the right to receive the Principal's private health information until the Principal cannot speak for himself/herself.  What would happen if the Principal is unable to speak for himself/herself because of a car accident or for some other sudden reason?  That Principal needs health care decisions made in an emergency.  Of course, emergency medical providers will provide the medical care necessary to deal with the emergency, but if the Principal has some non-obvious medical condition that the emergency personnel need to know?  If the agent has not been able to receive the Principal's health information, then no one might be able to warn the emergency personnel about the Principal's condition.

Your Agent might not be available in an emergency situation because the emergency personnel will probably not be able to look for the Agent (or even a Health Care Directive) while trying to attend to the Principal's emergency. Health care professionals won't withhold emergency treatment while looking for the Agent.  That said, in the aftermath of the emergency, medical providers will want permission from the Principal or the Agent to provide follow-up care. This follow-up care will not be "emergency," but it may be pressing.  Because of whatever created the need for emergency care (like a fall, an accident, or a stroke, for example,) the Principal may not be able to make a decision or may not be able to communicate his/her decision on health care matters.  As a result, the Agent may need to make these decisions and, in some circumstances, may need to make these health care decisions quickly.  When time is of the essence in a health care setting, the Principal's care should not be put on hold while the Agent learns for the first time about the Principal's potentially complicated health conditions.

Think ahead about the possibility of such an emergency.  Would you prefer to create a broad HIPAA release to allow the sharing of health information to your Agent and the alternative agents named in the Health Care Directive? It may be important to include additional family members, or close friends, that might be involved with and assisting the Agent at the time the Principal needs care.