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Most Essential Estate Planning Document: HIPAA Authorization

Andrea A.J. Witt, Esq.
January 10, 2017

 

As the new year begins, the calendars of estate planning attorneys become quickly filled with consultations for potential new clients eager to “get their affairs in order.” Individuals, couples or families resolve to accomplish what they’ve been putting off and seek expert advice. Most people presume the single essential document is a Last Will and Testament. I disagree. The document that protects your rights, ensures you maintain dignity, and allows you to remain in control of your wishes when you are most vulnerable, is the HIPAA Authorization.

HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. It is a federal law that protects the sharing of an individual’s medical information. Information obtained and recorded in hospitals, doctors’ offices, or any other place where an individual can seek and receive medical treatment is protected as confidential.

HIPAA is founded on two core principals. First, a patient has a right to privacy of their medical information, and to limit who has access to the medical records. Second, health care providers have an obligation of confidentiality to the patient, and to not disclose medical information to other people without the patient’s consent.

The reality is that patients are often accompanied and assisted by family caregivers. A family caregiver could be a spouse, partner, child, family member, friend, or anyone else close to the patient, who helps to take care of the patient who may be suffering with a chronic illness, or may simply rely on a neutral listener to assist with understanding diagnoses and making medical decisions. A family caregiver might help with meal preparation, and must be kept informed of dietary restrictions. Or the caregiver might assist with medications and needs to understand dosages and possible side effects of medications.

The law allows health care professionals to share medical information with family caregivers if the patient is awake, has a reasonable understanding of the situation, and has the opportunity to decide if they want the information shared. A HIPAA authorization previously signed by the patient is the key to ensuring that your family caregiver will have access to your doctors and your medical record.

As an estate planning attorney, I regularly draft HIPAA Authorizations, naming all the family caregivers who assist my clients. Family caregivers are in a unique position to notice a patient’s symptoms long before a health care professional may record them. If allowed to communicate freely with health care professionals, they can bring concerns to the health care professional’s attention and hopefully address and treat any conditions before they become dangerous or life threatening. For example, if a family caregiver notices symptoms of early dementia, and notifies their loved one’s health care professional of their concerns, the health care professional has additional useful information to address with the patient and may be able to treat the symptoms early enough to allow the patient to live a fuller, independent lifestyle for a longer period of time and stay out of a nursing home.

My clients are often worried about giving family members the authority to make health care decisions for them. A family caregiver authorized to give and receive medical information under a HIPAA Authorization cannot make medical decisions in place of the patient.

A HIPAA Authorization is one of several documents comprising a comprehensive estate plan. Standing alone it will not fully protect you from all the potential legal and financial hazardous you might face if you become incapacitated. But, it allows you to remain in control of your health care while granting those closest to you access to your doctors and other health care professionals to share useful information so that your doctors can give you the best treatment possible.

For more information, contact our office to schedule a conference to review your planning goals and options.