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Law Office of Rodney Gould May 24, 2021

Estate planning is not just about setting up wills and trusts to care for your loved ones when you’re gone. It’s also about preparing for the unexpected surprises in your own life, especially when it comes to your own health.

An experienced estate planning attorney will advise you to establish an advance directive, which states your medical preferences should you become incapacitated. In the past, medical power of attorney was also used for the same purpose, but the advance directive has taken over prominence in California.

Both the advance directive and the power of attorney can become problematic if the hospital or doctors caring for you refuse to share your medical history because of the restrictions included in the Health Insurance Portability and Accountability Act (HIPAA) of 1996. Therefore, you will also need a HIPAA release to go along with your advance directive or power of attorney.

If you’re located in the greater Los Angeles area, or nearby in Sherman Oaks, Studio City, West Hollywood, or Beverly Hills, California, contact the Law Office of Rodney Gould for comprehensive estate planning services. Attorney Rodney Gould will help you create the documents you need to not only care for your loved ones but also to plan for any eventuality in your personal health.

Planning for an
Unforeseen Health Crisis

An advance healthcare directive allows individuals to state their preferences for medical treatment should they become incapacitated and unable to make decisions for themselves.

Primarily, the directive will cover which treatments you would accept and which you would not, and also specify a facility at which you’d like to be treated. It could also cover the donation of your organs should you pass away. Most importantly, however, it must name a personal representative who will convey your wishes to your healthcare providers during your incapacitation.

Naming a personal representative who you trust with your decisions is vital. Otherwise, family members may argue over treatment options. In addition to having the power to convey your decisions to your doctors and hospital, the personal representative should also be empowered to:

  • Enforce your healthcare wishes in court, if necessary

  • Hire and fire doctors and medical workers seeing to your treatment

  • Have access to medical records

  • Have visitation rights

Under California law, the advance directive’s appointment of a personal representative is enough to legally empower that person to make decisions for you. However, some people have also chosen to use a durable power of attorney (POA) to enable a representative to speak for them in times of incapacitation. If the POA was adopted after 1992, it is still valid under California law, but it has been replaced by the advance directive as the primary legal document needed for healthcare decisions during incapacitation.

HIPAA & Health Information Privacy

Sections 261 through 264 of the Health Insurance Portability and Accountability Act, commonly referred to as HIPAA, directed the Department of Health and Human Services (HHS) to develop guidelines to protect the privacy of an individual’s health care information, which it labeled protected health information (or PHI). By 2002, the department had finalized its first version of what it called the Privacy Rule.

According to the official HHS website, the Privacy Rule applies to “health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form….” Though the rule specifies “electronic form,” most hospitals and providers have adopted an even stricter interpretation, forbidding the sharing of PHI in any format without the individual’s consent. HHS itself also enforces the Privacy Rule in all manners of PHI transmission.

This can pose a big problem if the personal representative named in an advance healthcare directive, or empowered by a medical POA, is not allowed access to medical information relevant to the person being cared for. It is always better to be prepared for such an eventuality with a HIPAA release built into the advance directive or issued separately. The HIPAA release, in addition to empowering a personal representative, can also name other persons, such as family members, who should have access to your PHI.

Work with an Experienced
Estate Planning Attorney

Comprehensive estate planning includes making end-of-life decisions, so while it’s not always an easy topic to broach, it is a necessary one. While you’re planning for the care of your loved ones when you’re gone, you also need to plan for any eventuality in your own life, including sudden health care emergencies.

You may not always be in a condition to make decisions for yourself, so an advance healthcare directive is an instrument that can ensure your wishes are respected. Including a HIPAA release will guarantee that the personal representative named in your directive will have access to all of your medical history and data, which could play a huge part in carrying out your wishes.

The Law Office of Rodney Gould has helped countless others like you in the Greater Los Angeles area plan for the future and create the necessary legal documents to carry your wishes forward. Reach out now to get started on your estate planning or to review what you have in place to make sure you have all your legal bases covered, including a HIPAA release form.