The Missing Document in Most Estate Plans: A HIPAA Authorization
An Advance Healthcare Directive (also known as a “Durable Power of Attorney for Healthcare Decisions”) becomes important when you cannot speak for yourself. The Advance Healthcare Directive is an incredibly important part of your Estate Plan; however, there’s another document that should be included when planning for your future medical care: a HIPAA Authorization.
While an Advance Healthcare Directive focuses primarily on who can make healthcare decisions for you if you are unable to do so, a HIPAA Authorization addresses a different issue: who can access your medical information and communicate with your healthcare providers. These two documents can work together to give your loved ones a much more complete picture of your healthcare wishes and provide them with the information they may need to assist you.
The Problem
An Advance Healthcare Directive appoints a healthcare agent who has authority to make medical decisions if you are unable to do so and may expressly authorize healthcare providers to disclose protected health information to the designated agent and other specified individuals. However, sometimes the issue is not who makes the decisions. The issue may simply be whether a loved one can participate in the healthcare process, communicate with providers, obtain information, assist with care coordination, and advocate for you while you are still capable of making your own decisions.
The federal Health Insurance Portability and Accountability Act (“HIPAA”) generally protects a patient’s medical information and limits when healthcare providers may disclose protected health information. This can create an unexpected problem. You may want your spouse, adult child, sibling, or another trusted person to be involved in your healthcare, but without an appropriate authorization, that person may encounter difficulties obtaining information from doctors, hospitals, pharmacies, or other healthcare providers. A HIPAA Authorization can help address that gap.
It Isn’t Just for Incapacity
One of the most important reasons to consider a separate HIPAA Authorization is that you do not have to be incapacitated for the authorization to be useful. Your Advance Healthcare Directive generally becomes most important when you are unable to make or communicate your own healthcare decisions. A HIPAA Authorization, by contrast, can allow you to designate people who may access and discuss your medical information while you are still capable of making your own decisions. That distinction matters.
You may want your spouse to speak with your doctor after an appointment. You may want your adult child to help coordinate treatment. You may want a sibling to assist with insurance paperwork. None of those situations necessarily means that you are incapacitated. A HIPAA Authorization can help give your trusted individuals the ability to assist you without requiring them to wait until you are legally determined to be incapacitated.
Coordinating Care
Healthcare often involves much more than simply visiting your primary care physician. A loved one may help schedule appointments, coordinate transportation, keep track of medications, communicate with multiple specialists, review treatment instructions, and make sure appointments and follow-up care are completed.
For example, imagine that an elderly parent has appointments with a primary care physician, cardiologist, and neurologist. Their adult child may be helping coordinate all three appointments and keeping track of medication changes. If the adult child has questions about test results, medication instructions, or a physician’s recommendations, the provider may be limited in what information can be shared without appropriate authorization. A HIPAA Authorization can make it easier for designated individuals to communicate with healthcare providers and obtain the information they need to help coordinate care.
Medical Emergencies
Medical emergencies are another situation where access to information can become particularly important. You may be conscious and legally competent but temporarily unable to communicate effectively with your family because you are undergoing surgery, recovering from anesthesia, hospitalized, traveling, taking medication that affects your ability to communicate, or undergoing another medical procedure.
During these situations, a spouse or trusted family member may need information about your treatment, prescriptions, discharge instructions, follow-up appointments, or other aspects of your care. Even if you are ultimately able to make your own medical decisions, having a HIPAA Authorization in place can help your loved one communicate with your healthcare providers and better understand what is happening.
Understanding Complex Diagnoses
Receiving a serious or complicated medical diagnosis can be overwhelming. You may want a spouse, child, or another trusted person present when your physician explains a diagnosis, discusses treatment options, or reviews potential risks and benefits. That person may help by taking notes, asking questions you may not think of at the time, remembering instructions, and helping you understand what your physician has explained.
Without appropriate authorization, however, a healthcare provider may be cautious about discussing protected health information with someone other than the patient. A HIPAA Authorization can help ensure that the people you trust can participate in these important conversations when you want them to.
Insurance and Benefits Matters
Healthcare decisions often involve financial and administrative issues as well. A loved one assisting with your care may need medical information to help submit insurance claims, respond to claim denials, appeal coverage decisions, coordinate Medicare or supplemental insurance, or provide documentation requested by an insurance company.
The same may be true when applying for disability benefits or other programs where medical records or physician information may be required. A HIPAA Authorization can help your designated representative obtain the medical information necessary to assist with these matters, subject to the terms of the authorization.
Long-Term Care Planning
Long-term care decisions can require substantial medical information. If you eventually need assistance evaluating assisted living, memory care, skilled nursing, home health services, or other forms of care, your family may need to understand your medical needs and recommendations from your healthcare providers.
For example, a family member may need to determine whether a particular facility can accommodate your medical needs or whether additional services will be required. Access to relevant medical information can help your loved ones make more informed decisions and communicate with healthcare professionals during the planning process. A HIPAA Authorization can be particularly helpful when several family members are involved in coordinating long-term care.
Obtaining Second Opinions
Major medical decisions sometimes require another perspective. You may want to obtain a second opinion before undergoing surgery, beginning a significant treatment, or making another important healthcare decision.
Obtaining a second opinion may require medical records, imaging, laboratory results, physician notes, or other information to be shared with another healthcare provider. If a trusted family member is helping coordinate the process, a HIPAA Authorization can make it easier for that person to communicate with healthcare providers and assist with gathering the necessary information. This can be especially valuable when you are dealing with a complicated diagnosis and multiple specialists.
Avoiding Delays During Incapacity
Incapacity does not always happen suddenly. Sometimes the transition is gradual. A spouse or adult child may begin noticing changes in memory, judgment, communication, or the ability to manage everyday affairs before a physician formally determines incapacity.
During this period, access to appropriate medical information can help loved ones better understand what is happening and determine whether additional assistance may be necessary. For example, a spouse may notice that a loved one is repeatedly missing appointments or becoming confused about medications. Being able to communicate with healthcare providers may help the family better understand the situation and determine what steps should be taken. A HIPAA Authorization does not give someone the authority to make medical decisions simply because they have access to information. Instead, it can provide a separate layer of authorization allowing designated individuals to receive and discuss protected health information.
Who Should You Authorize?
There is no one-size-fits-all answer. Some people choose to authorize their spouse. Others may designate adult children, siblings, other relatives, or trusted individuals. You may also want to consider whether more than one person should have access to your healthcare information.
For example, if your adult children live in different states, you may want both children to be authorized so either one can communicate with your healthcare providers if necessary. Your authorization should reflect your wishes and the people you trust to assist you.
What Happens Without One?
Without a HIPAA Authorization, your loved ones may encounter unnecessary obstacles when attempting to obtain information from healthcare providers. A provider may be concerned about violating federal privacy requirements and may decline to discuss your medical information with someone who is not properly authorized.
That can lead to frustrating delays at precisely the time your family is trying to help. The issue may not be that your family member is trying to make a decision for you. They may simply be trying to understand what your doctor said, obtain a copy of your records, coordinate an appointment, communicate with a specialist, or help resolve an insurance issue. Having the appropriate authorization in place ahead of time can help reduce those complications.
The Solution
Your Estate Plan should be reviewed as a complete plan rather than simply a collection of individual documents. An Advance Healthcare Directive can address who may make healthcare decisions for you if you cannot make them yourself. A HIPAA Authorization can address who may access and discuss your protected health information.
A separate HIPAA Authorization can be effective immediately upon execution and can authorize one or more trusted individuals to receive medical information according to the terms of the authorization. It can also help your loved ones access information that may be important for insurance, disability, long-term care, benefits planning, second opinions, and ongoing care coordination. Together, these documents can provide a more comprehensive approach to healthcare planning.
The Bottom Line
Most people understand the importance of having a Will, Trust, Power of Attorney, and Advance Healthcare Directive. But healthcare planning does not necessarily end there.
A HIPAA Authorization may be the missing piece that allows the people you trust to communicate with your healthcare providers and obtain the information they need to help you. Estate planning is not only about what happens after you die. It is also about preparing for the possibility that you may need help managing your affairs while you are still alive. Now is a good time to review your plan and make sure it still provides the protection and access you intended. If your Estate Plan does not include a separate HIPAA Authorization – or if you are unsure whether your current documents adequately address access to your medical information – contact our office to schedule a review. A small update today can help prevent unnecessary confusion and delays for the people you trust when they need to help you most.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
Lee A. Drizin, Esq. is the founder of Drizin Law and has practiced in Las Vegas for over three decades. His work focuses on probate, estate planning, trusts, and guardianship, with particular experience handling contested probate and administration matters. A UNLV graduate with a Master of Laws in Taxation from Boston University, Lee has built his career helping Nevada families navigate some of the most difficult times in their lives.
