LOOKING AT MEDICAL PRIVACY RULES FROM AN ESTATE PLANNER’S PERSPECTIVE
By Neil F. Horton, Esq.*
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.