Estate Planning Lawyer—How Can He Help Under HIPAA and Protected Health Information Provisions?


Here we are discussing HIPAA (Healthcare Insurance Portability and Accountability Act) and showing how your estate planning lawyer can help you. Recently, HIPAA had received unprecedented individual as well as press attention because of the recent required implementation of its privacy provisions. As an estate owner it becomes very important to know about these provisions and various possibilities available to us.

Here one should note that the privacy provisions apply to health care providers, health care plans (including employer self-insurance plans), and health care clearing houses, alike.

In case, you have visited a doctor recently and the doctor has asked you to sign up an “HIPAA” (to be precise… HIPAA Notice of Privacy Practices) then you need to know about what the piece of paper actually signifies and its importance to you in your medical records.

Here, you will learn how HIPAA regulations would affect various estate planning documents and practices. The estate planning lawyers must know in detail, about HIPAA and “Protected Health Information”.

Most estate planning lawyers have expressed their serious concerns about the power of attorney that includes the power to make medical decisions as well as restrictions. Actually this is all about disclosing private information by the doctors or other health care service providers to the families of the patient or the lawyer for the patient. The rules under HIPAA need health care providers in order to treat the personal representative as the patient.

Some important documents associated with estate planning include definitions of disability or requirement for medical determinations. This would also include employment agreements in conjunction with disability benefits, shareholder or even partnership agreements that allow or need transfers of business interests on disability.

The estate planning lawyer needs to reconsider the manner in which the necessary authorizations for the disclosure of health information is to be followed. Most revocable trusts offer elimination of the grantor as trustee for transformation in distributions or other consequences based on the disability of the grantor.

The estate planning lawyer can arrange for a separate authorization for the disclosure of broad and unlimited authorization. This must be strictly under the regulations of valid authorization wherein an authorization for a particular purpose of determining disability must be specific and clear enough to pass thru the most stringent regulations. Another solution is also possible in this case, wherein an authorization can be included for the disclosure of the important health information with the trust agreement.

Here one should also note that the revocable trust can also offer one or more designated family members to make the determination of disability. In case, the decision maker is not covered by HIPAA and the determination can be made without access to health information protected by HIPAA, then the requirements for HIPAA would not block a determination to step the grantor down as trustee.

This solution provides less protection to the grantor of the revocable trust. The reason is that the determination of disability would depend on the conclusion of someone related to grantor, as the grantor cannot function as a trustee any more. Therefore sometimes the HIPAA privacy regulations are considered as confusion creators among estate planning lawyers. Therefore, one needs to keep abreast of every new law in the industry to serve well.

Here the role of your estate planning lawyer becomes very critical, as the new provisions may cause some problems to the family members, if not understood well. Suppose you are ill then your family members may try to learn about your medical condition from a doctor, but as per rules he is not entitled to tell that situation to your family members.

Under the HIPAA regulations, personal representatives and valid authorizations issues apply to the powers of attorney as well as to other estate planning documents and procedures. These are the issues that can be handled efficiently by an experienced and learned estate planning lawyer only.


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