The patient advocate you named in your Living Will and the agent you named in your Durable Power of Attorney are going need additional documentation if you want them to make medical and financial decisions for you when you’re too sick or injured to take care of things on your own.

In an effort to protect the privacy of individuals, the federal government recently tightened up the disclosure clauses in the Health Insurance Portability and Accountability Act (“HIPAA”). The goal was to protect individuals from people who might use their medical history against them in the case of employment or insurance. But the changes do not take into consideration the times when persons are so ill they cannot make their own medical decisions or handle their own financial affairs.

To further complicate matters, the HIPAA Regulations impose substantial penalties for unauthorized disclosure of health information, and the medical and related professions have reacted by being even more cautious than before.

In addition, Michigan recently enacted the Michigan Medical Records Access Act (“MRAA”), which is similar to (but, of course, not the same as) HIPAA. MRAA also poses much the same restrictions and resulting problems as HIPAA.

Under the new regulations, the agent and/or patient advocate cannot act until the person having signed the document giving them power has been determined incapacitated (for a Durable Power of Attorney) or unable to participate in his or her own medical decisions (for a Living Will). This creates something of a “Catch-22,” because if a person is too ill or injured to sign the necessary releases, the information necessary to let anyone act for him/her may be inaccessible.

In response to this dilemma, we have developed a Certification and Designation of Personal/Authorized Representatives for Release and Use of Limited Health Information/Medical Record (referred to in this article as a Certification). This is a “pre-need” document that gives the persons named in the Durable Power of Attorney and in the Living Will access to the very limited medical information needed to make use of these documents.

Once incapacity has been established, the HIPAA Regulations and MRAA still impose substantial restrictions, which also apply to the incapacity provisions of a Revocable Trust. We have dealt with this by adding language to all of these documents to address the HIPAA and MRAA requirements so medical providers can safely release health information when needed.

We have expended substantial time to create the language necessary to deal with the requirements of HIPAA and of MRAA, and we will continue to revise and update this language as the meaning and impact of HIPAA and of MRAA become more clear over time, as we do with all of our documents as both law and practice change.

For now we can tell you that the Certification works. It gives healthcare providers the information they need to safely release health information when needed.

To put this and the reaction of the medical and other professions into context, we recently used a Certification to convince a local hospital to release a cadaver to a funeral home and to convince the funeral home to proceed with the decedent’s wishes for cremation. It may be hard for you to believe, but both the hospital and the funeral home declined to comply with the family’s wishes, due to concerns over the HIPAA Regulations, until given the Certification.

Unfortunately, complying with the HIPAA Regulations and with MRAA means more paper work, but at least to date, no one, here or throughout the legal and other professions, has been able to come up with any other or better approach.

Formation of the Certification is another way we assist our clients with all aspects of the ever-changing laws that affect estate planning and related matters.

Please call, if you would like us to prepare a Declaration for you, which will also take the requirements of HIPAA and of MRAA fully into account.

For further information regarding these matters, please contact Mr. Umphrey at 248.528.1111 or click here to send an email.