Estate Planning | Making a Difference One Family at a Time

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Advance health care directives are important components to your estate plan, and what they do is record your medical preferences so that your wishes are known should you be unable to communicate them at some point in the future. With a living will you state the medical procedures that you would be willing to accept and those that you would prefer to deny. When you execute a durable medical power of attorney, who empower a person of your choosing to make medical decisions in your behalf if you cannot make them for yourself.

These two legal instruments are key when you are planning for the possibility of incapacity and potential end-of-life scenarios, but you also have to consider the ramifications of the Health Insurance Portability and Accountability Act. This act was originally passed back in 1996 to require those who are in possession of your health care information (such as insurance companies and health care providers) to keep it confidential.

As you might imagine the details of the law as it was finally passed down by the Department of Health and Human Services in 2001 are rather complex. Each health care provider is not expected to scour the guidelines before making judgment calls on a case-by case basis, so hospitals implement their own rules based on their interpretations of the HIPAA. So when you see a doctor in the hospital this physician will be bound by that hospital’s regulations concerning the HIPAA.

So, they may not feel as though they can discuss the details of your case with family members or the health care proxy you named unless you have included a HIPAA release in your estate plan. It is important to recognize this and sign a release, which can be part of your health care proxy or medical power of attorney or a separate stand-alone document.

Jeffrey A. Nirenstein, Estate Planning Attorney
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