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Gregory L. Williams Dec. 28, 2021

According to an annual survey conducted by the website, in 2021, awareness of the need for estate planning grew among the 18-to-34 age group due to the pandemic and its health scare. The other age groups, however, remained mostly static, and overall, the percentage of Americans with any estate planning documents in place still stood at about one-third.

The pandemic definitely highlighted the uncertainties of life. There are no guarantees, and the unexpected can occur at any time. That’s why it’s important to begin estate planning as soon as you can in life.

Estate planning does not just embrace what happens after you’re gone – how your property and assets are divided – but also what happens to you when a setback or challenge comes out of the blue. What if, for instance, the virus or another disease or accident leaves you incapacitated in a hospital? Who is going to convey your medical choices for you?

A living will, or advance healthcare directive, can appoint someone to act as your healthcare agent and provide that person with your choices in advance. There could be one hitch, however, and that involves the Health Insurance Portability and Accountability Act (HIPAA), which restricts access to a person’s medical history. You may need to issue a HIPAA authorization to your agent. A HIPAA release may also prove useful in other situations. 

For all your estate planning needs in or around Columbus, Ohio, or anywhere throughout Central Ohio, contact me. I can meet with you, discuss your unique needs and circumstances, and then advise you on the estate planning instruments you need to put in place, including a HIPAA authorization.

Understanding HIPAA

HIPAA, the Health Insurance Portability and Accountability Act, was enacted in 1996. Subsequent to its enactment, the U.S. Department of Health and Human Services (HHS) issued three HIPAA regulations: one covering the privacy of protected health information (PHI), another concerning security measures regarding digital healthcare records, and a third involving breaches of PHI.

For estate planning purposes, the privacy rule is the most pertinent. If you end up in a hospital, your named healthcare agent may be denied access to your medical records because of the rule. To access them, the person may well need a HIPAA authorization.

Purposes of a HIPAA Authorization

To prepare for the event of possible incapacitation, you need two legal components: a living will and a healthcare power of attorney, together known as an advance healthcare directive.

The living will sets forth your choices should you become incapacitated and unable to speak for yourself in the hospital. Generally, a living will is associated with “do not resuscitate” orders, but it is not limited to that. You can make a wide range of choices, including whether or not to be fed through tubes or to be given palliative care.

The healthcare power of attorney gives your named representative – family, friend, or associate – the power to make decisions and speak for you based on your living will.

The catch, as noted, is that HIPAA and its privacy rule may prevent your named representative from accessing needed information to make an informed decision. The HIPAA authorization handles this. At the same time, the authorization relieves the hospital and attending physicians of any liability for breaking the privacy rule.

A HIPAA authorization, though vital for a power of attorney and living will, is also important if you’ve set up a living trust. In a living trust, the successor trustee you name takes over management of your financial and legal affairs, including paying bills, should you become incapacitated. 

The trustee should be awarded not only a power of attorney to facilitate this task, but also a HIPAA authorization. Without the authorization, the trustee may not even be able to gain access to your medical bills to pay them.

You may also consider giving a HIPAA authorization to your family members so they also have full access to your medical information, including bills.

These instruments – HIPAA authorization, power of attorney, living will, living trust – all must meet certain legal requirements to be valid. Generally, they must be witnessed and/or notarized. You and your personal healthcare agent, for instance, must sign in the presence of disinterested witnesses or a notary public.

How Legal Counsel Can Help

Everyone’s situation is different, so there’s no one-size-fits-all solution to estate planning. You really need to confer with an experienced estate planning attorney to weigh your options and come up with the ideal plan for you and your loved ones.

If you’re in the Columbus, Ohio area, or anywhere in Central Ohio, contact me. We can meet and review what documents you have in place to make sure they’re updated and comprehensive, or we can begin the estate planning process from scratch. In either circumstance, let’s work together to make sure you and your loved ones are protected.