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I didn't include a HIPAA release in my estate plan. What now?

Our estate planning tools have been developed and refined over the course of centuries, but that does not mean there is nothing new to consider. In fact, even a carefully considered, well-drafted estate plan should be reviewed from time to time, even if you're not sure your position has changed.

When done right, every estate plan is crafted individually to meet the specific goals of the person or family it is written for. Whenever a major event takes place -- a marriage, the birth of a child, a divorce, the loss of a family member, or major financial event -- you should have it rolled into your plan.

Changes in the law could also impact your estate plan, by raising new issues or by changing the effects of your existing documents. Unfortunately, the change in the law doesn't have to be all that new for it to surprise people. The 1996 Health Insurance Portability & Accountability Act is one example of a law whose impact took many medical professionals and estate planners off guard. 

The main purpose of HIPAA is to protect the privacy of patients' health information. HIPAA's Privacy Rule explicitly limits who can look at your medical records. Your medical data is protected regardless of whether it comes in the form of written notes or prescriptions, electronic health records or a doctor's verbal instructions, and it cannot be released except under specific circumstances.

How does HIPAA affect estate planning?

The full implications of HIPAA were not immediately clear at first. Doctors and hospitals were concerned that HIPAA required them to deny access to patients' immediate family members, and even their designated patient advocates, personal representatives and guardians.

A designated patient advocate is what Michigan law calls the person you choose to make healthcare decisions on your behalf should you become unable to do so yourself. (Other states use terms like healthcare proxy, medical power of attorney or living will.) A personal representative is our term for the executor of a will or the administrator of an estate. In Michigan, a guardian is someone who is granted the right to make financial and other decisions on another's behalf, including decisions about healthcare. A guardian can have those rights over a minor child or an adult with a disabling condition that keeps them from being able to make those decisions on their own.

For example, medical practitioners were concerned that "springing" powers of attorney, which become legally effective only upon the incapacity of the patient, would not be legal under HIPAA. Why? Because using a springing power of attorney requires proof of the patient's incapacity -- and that proof could not be obtained without opening the patient's medical records. They expressed the same concerns about a number of estate planning and guardianship tools.

Yet patient advocates, guardians and personal representatives are the very people who have a legitimate need to see private healthcare information. Would everyone in America need to revise their estate plans to include a HIPAA release?

Luckily, the answer is probably no. As the ABA pointed out in 2006, the strict HIPAA regulations do not require changing your estate plan. Medical data should be provided to designated patient advocates.

The effectiveness of a healthcare designation under HIPAA depends on its validity under state law. As long as your patient advocate designation or other document indeed grants full legal authority to make medical decisions, doctors and medical providers should accept it. It's not what magic words appear on the paper -- it's whether the document has been drawn up legally and correctly that matters.

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