New Privacy Regulations

Over the last year or so, you have probably encountered numerous versions of “waivers” or “disclosures”, not only in your doctors’ or dentists’ offices, but also from banks, brokerage houses, insurance companies, etc.  This is all due to the new HIPAA privacy regulations.  These regulations were originally adopted to protect the privacy of your medical information in electronic form, primarily between your healthcare providers and your insurance carriers.

There has been an unfortunate side effect brought on by these new regulations with unintended consequences of restricting access to healthcare information by the very agents you listed under your powers of attorney, both for asset management and healthcare.  This unfortunately also affects the successor trustees of your trusts.

The problem is as follows: if you have a power of attorney or a trust that provides that in order for the power of attorney to become effective or for a new trustee to take office, a physician must certify in writing that the principal under the power of attorney, you, or the current trustee of the trust, you, is no longer capable of handling the business affairs involved.  The glitch comes in with the new regulations which now prohibit the physician from giving that letter unless you, the patient, have authorized the release of that information or have authorized someone else to receive this information.

Since most durable powers of attorney, both for asset management and healthcare, contain provisions requiring a physician’s statement, and since most trusts drafted contain provisions requiring a physician’s statement in order to remove one trustee and replace him or her with another, it is extremely important to maintain the effectiveness of these documents.  It is critical for you to contact your attorney to determine whether he or she has created a form, which allows you to nominate someone who can obtain the necessary documentation from your physician, should it become necessary.

Another challenge that faces each of us is how the hospital or emergency room will know that an Advance Directive is available if they are not able to communicate this information.  A number of registry services have become available which maintain databases available to you seven days a week, 24 hours a day.  One such database is “DocuBank.”  They will store a copy of your documents and the pertinent contact information, providing you with a wallet card that tells medical personnel how to obtain this information, all for a very small fee.  If you would like further information, please contact DocuBank at 1(800) 362-8226 or www.docubank.com or by email at info@docubank.com.