Recent federal legislation known as the Health Insurance Portability and Accountability Act (HIPAA) imposes strict privacy regulations on the disclosure of individually identifiable health information. This necessitates the addition of specific release and consent authority in all health care powers before any health care provider can release medical information to agents and interested persons of the client. This can often present a “Catch-22” situation: the powers of attorney are effective only on the incapacity of the principal, but if the principal is incapacitated how can he/she authorize the release of the information to establish that he/she is incapacitated.
Because HIPAA has no “grandfather” exceptions, previously executed estate planning documents may now be useless without a properly executed amendment or a new document which specifically addresses the HIPAA requirements.
All documents included in the program which could be depended on health information (e.g., health care directives, power of attorney, trust agreements) are specifically HIPAA compliant and the HIPAA release provisions are made effective immediately.