Recently, I’ve met with many clients who have revocable living trusts, and other estate planning documents, that were executed some fifteen or twenty years ago. The issue with many of these estate plans is that they are non-compliant with privacy rules established by the Health Insurance Portability and Accountability Act (HIPAA). As a result, their successor trustees, executors, and financial and healthcare agents often run into problems when attempting to communicate with insurers and healthcare providers on behalf of the person who executed the documents.
As of April 14, 2003, healthcare providers and other covered entities must comply with the standards imposed by the HIPAA Privacy Rule, which placed strict restrictions on the disclosure of protected health information (PHI) without the patient’s express permission. While these privacy protections are a positive thing for patient confidentiality, they can make it difficult for a patient’s representatives to make informed healthcare decisions on his or her behalf when the patient is no longer able to make such decisions.
You may avoid a situation like this by having a properly executed HIPAA authorization accompany your estate plan. Without such authorization, HIPAA may preclude your healthcare providers and insurers from disclosing protected health information to your representatives. As a result, your representatives may not be able to make informed decisions for your benefit. For instance, how would a loved one make an informed healthcare decision for you if that loved one does not have access to your health records?
From what I have seen in reviewing clients’ estate plans, if your current estate plan is over ten years old, there is a likely possibility that your estate is not HIPAA compliant. To ensure that your documents are in compliance with new laws, you should speak to an attorney about potentially updating your estate plan to include HIPAA authorization.