LOOKING AT MEDICAL PRIVACY RULES FROM AN ESTATE PLANNER’S PERSPECTIVE

By Neil F. Horton, Esq.^*

I. INTRODUCTION

In many trusts the triggering device for removing a trustee is a physician’s certification under penalty of perjury that the trustee is no longer able to administer the trust because of physical or mental incapacity.¹ Similarly, the triggering device for many springing durable financial powers of attorney is a physician’s sworn certification of the principal’s incapacity.² A party petitioning for the appointment of a conservator must use a licensed medical practitioner’s affidavit or certificate to demonstrate that the proposed conservatee is medically unable to attend the hearing.³

Today, however, practitioners are finding it more difficult to obtain and use medical information about clients or clients’ elderly loved ones.⁴ Both the recently effective federal regulations under the Health Insurance Portability and Accountability Act ("HIPAA")⁵ and California’s long-standing Confidentiality of Medical Information Act ("CMIA")⁶ limit accessibility to medical information.