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When privacy gets in the way: HIPAA and CMIA waivers as part of your estate plan

You know the form that every doctor and hospital has you sign as soon as you’ve walked through the door? The HIPAA notice that ensures that your health care provider will keep information about your health history, treatment and medical status private? Well, if you create an estate plan with me I will actually have you sign another paper, the HIPAA and CMIA waiver, that overrides your original signature. Why? Because there are situations where privacy can get in your way.

Take this scenario: You’ve created an estate plan with a living will and a durable power of attorney (POA) for healthcare. With the POA you’ve designated a family member or a friend as your health care agent or health care proxy; if you should become incapacitated, be it after an accident or because of dementia or another illness, this person will make health care decisions on your behalf. In the living will you’ve spelled out your wishes regarding medical treatment, and one of the provisions you’ve included is a “Do not resuscitate” order, also known as DNR.

But there’s a catch, and in California it has to do with the California Medical Information Act (CMIA,) a law that adds regulations to those laid down in the Health Insurance Portability and Accountability Act (HIPAA.) One of them states that powers of attorney do not take effect until two doctors have declared in writing that a patient is incapable of making his or her own healthcare decisions.

Now, if you as a patient are in no state to ask for such a declaration and HIPAA prevents your health care providers from discussing your medical situation with anyone but you — how then is your health care agent going to speak for you and ensure that you will not be resuscitated if your heart stops beating? This is where the HIPAA and CMIA waiver comes in, and why it needs to be part of every estate plan: By allowing health care providers to talk about your medical condition with specific people, it stops the Catch 22.

By Kevin J. Moore