HIPAA PRIVACY RULES: WHAT’S AN ESTATE PLANNER TO DO?

By Paul L. Basile, Jr., Esq.^*

I. INTRODUCTION

Many estate planners draft trusts, durable powers of attorney and advance health care directives which provide mechanisms for the transfer of authority from the current holder to another upon the incapacity of the holder to act. For example, a trust may contain a provision that the current trustee may be removed upon his or her physical or mental incapacity as certified by one or more physicians.¹ Likewise, a durable power of attorney may grant the agent authority to act when the principal does not have sufficient understanding or ability to make or communicate decisions about the principal’s property, financial or business affairs as certified by one or more physicians.² An advance health care directive may grant the agent authority when the principal’s primary physician determines that the principal is unable to make his or her own health care decisions.³ In each case, a physician must make a determination that the principal is unable to act and provide a certification to that effect.

However, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA")⁴ and the recently enacted Regulations interpreting it⁵ limit what medical information ("Protected Health Information") a physician may disclose to someone other than the patient (the "Personal Representative"). Likewise, the California Confidentiality of Medical Information Act ("CMIA")⁶ limits disclosure of certain medical information. As a result, obtaining the required certification by the principal’s physician may be difficult or impossible.