HIPAA Waivers and Estate Plans

HIPAA Waivers and Estate Plans

Estate planning is an important part of life, and one key element of a successful estate plan is incorporating a HIPAA waiver. HIPAA, or the Health Insurance Portability and Accountability Act, is a federal law that protects the privacy of health care information. A HIPAA waiver allows for the release of health information so that an individual’s health care wishes can be honored by their family and/or health care providers. Incorporating a HIPAA waiver into your estate plan can help ensure that your wishes are followed, and your health care decisions are respected. HIPAA waivers are an important piece of an overall estate plan. If you are ready to update your estate plan with a HIPAA waiver, contact the Jennifer V. Abelaj Law Firm at 212-328-9568 to go over your options and make sure your estate plan is in order.

What Is HIPAA?

HIPAA is the Health Insurance Portability and Accountability Act of 1996. It is a federal law requiring medical providers and other professionals with access to private health information to have safeguards and policies to protect that information. HIPAA also created rules about when those healthcare providers and other professionals can share that protected health information with others, such as the patient’s spouse, children, other healthcare providers, or insurance companies. 

A central part of HIPAA is that entities that are subject to it, such as healthcare providers, must only share health-related data in particular situations. Additionally, they are only allowed to disclose the minimal amount of information necessary. Generally, they can share the details in these conditions: 

• Where the patient has given consent (the patient is present or has provided written permission)
• If it is required to ensure the patient receives the right care 
• When it is needed to obtain payment for the services provided

What Is a HIPAA Waiver?

A HIPAA waiver, also known as a HIPAA authorization or release, gives the healthcare provider the patient’s permission to release personal health information to someone other than the patient. Many people have completed a version of a HIPAA waiver when completing paperwork at a new healthcare provider’s office. 

A HIPAA waiver must be written in plain language. It also needs to contain the following:

• The healthcare provider’s name
• The person’s name to whom the information is being disclosed
• A description of the information being disclosed
• The purpose of the disclosure
• A specific time frame the waiver is valid and expiration date for the waiver
• The name, signature, and date of the individual giving permission

Is a Medical Power of Attorney the Same Thing as HIPAA Waiver?

A medical power of attorney is often one of the first things people think of when they are trying to make sure their wishes are carried out if they cannot make their own decisions. Medical power of attorneys are an important part of an estate plan, as they ensure that someone is aware of what the individual wants and can ensure those decisions are made. However, a power of attorney is not the same thing as a HIPAA waiver. A medical power of attorney does not grant the same permissions and may not be enforceable if it is not written correctly. 

For example, if an individual does not include a durability clause, the medical power of attorney will not be valid when they become incapacitated. A durability clause indicates that whatever powers were granted in the power of attorney will remain in full force and effect even when the grantor is incapacitated. 

Why Do You Need a HIPAA Waiver?

Many people fill out a medical power of attorney as part of their estate plan. This gives authority to a trusted loved one to make medical decisions in the event the individual is unable to make their own decisions. Unfortunately, some healthcare providers may be unwilling to provide information about the individual’s health due to HIPAA, even with a medical power of attorney. While a medical power of attorney is still necessary to ensure that the individual’s wishes and desires are not ignored, the HIPAA waiver is required to ensure that providers will give the family member or personal representative the health information needed to ensure those wishes and desires are carried out. 

Another instance where HIPAA waivers and estate plans are legally connected is trusts. Individuals may also need a HIPAA waiver if there is a trust agreement that provides for the appointment of a successor trustee if the original trustee becomes incapacitated. In this case, the HIPAA waiver would allow the successor trustee to verify the health information of the trustee and assume the duties of trustee if needed. The Jennifer V. Abelaj Law Firm may be able to assist in setting up both the trust agreement and necessary HIPAA waiver to ensure smooth transitions. 

When Should You Sign and Update HIPAA waivers?

Having a current HIPAA waiver is a crucial piece of an estate plan. If an individual is creating their estate plan for the first time, this is an excellent time to sign and include a HIPAA waiver. If there is an existing estate plan, adding a HIPAA waiver as soon as possible offers the assurance that their wishes will be carried out in the event they become incapacitated. 

Just as individuals should go over and update their estate plan frequently, they should review their HIPAA waiver and ensure it is still current. They may need to update the names of healthcare providers who are authorized to share information or the names of those with whom that information can be shared. Additionally, HIPAA waivers typically have a specific time frame during which they are effective and an expiration date after which they are no longer considered valid. Therefore, most individuals should update their HIPAA waiver at least as often as it expires. 

Do You Need to Add a HIPAA Waiver to Your Estate Plan? 

HIPAA waivers and estate plans are a strong combination for ensuring that your wishes are carried out in the even that you are medically incapacitated and unable to speak for yourself. If your estate plan does not have a HIPAA waiver yet, it is time to include one. Reach out the Jennifer V. Abelaj Law Firm at 212-328-9568 to discuss adding a HIPAA waiver and ensuring your estate plan is comprehensive and ensures your legal rights remain protected.