Should I Create a HIPAA Authorization?

Congress designed and passed The Health Insurance Portability and Accounting Act (HIPAA), specifically the Privacy Rule, to safeguard people’s health and medical records. The act attempts to ensure that our medical information stays confidential by imposing large penalties on doctors and medical facilities who release medical information without permission. These harsh penalties have made medical providers very wary of sharing any of your medical information, even with your close family members. While this level of security in our medical information is often a good thing, it can create difficulties in times where, because you are incapacitated, your family needs to make medical decisions for you. This is why all properly created estate plans also include a HIPAA authorization form. This form lists the type of information that you authorize your health care provider to share, and who they can share the information it with.

There are two situations where a HIPAA authorization form is particularly helpful. One situation is when you become incapacitated and you need your loved ones to make your medical decisions for you. In this type of situation, in order to make the best possible decision, it is of crucial importance that those making the decision know your medical history. If you have executed a durable health care power of attorney, then the medical provider should give your agent your medical information. The person you name in your durable power of attorney is your “personal representative” and “stands in your shoes.” As a result, the health care provider should listen to them as if they were you. However, if you have a “springing” health care proxy, or a health care power of attorney that only takes effect at the time of your incapacity, then a separate HIPAA authorization form is required to get the medical evidence that you have become incapacitated. Most estate plans have a “springing” health care power.

The other situation where a HIPAA authorization form is valuable is to avoid guardianship proceedings. A complete estate plan will allow your family to continue your affairs should you become disabled or incapacitated, without having to begin an expensive and time consuming guardianship proceeding. Often, in these plans, if you are unable to manage your own affairs, your estate plan documents will provide the power to your appointed agents to manage your affairs for you. Financial powers of attorney will come into effect, often the trusts that you are the trustee of will change trustees, and other parts of your estate plan will come into effect. As with the springing health care power of attorney, all of these documents need medical evidence to take effect. If you have a HIPAA authorization, this evidence becomes available to the person you name, and the rest of your estate plan can take effect.

A HIPAA authorization form is a valuable part of an estate plan. It should be included in every estate plan, particularly those estate plans that use “springing” powers of attorney. The HIPAA authorization often acts as a key, which allows the other documents to become unlocked.

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