What Does Texas Require for An Advance Directive or Living Will?
The Texas Medical Privacy Act helps protect your medical privacy. The dedicated estate planning attorneys at Ibekwe Law, PLLC in Texas can help you address your estate planning concerns with this ironclad privacy.
The Texas Medical Privacy Act is a legal act implemented by the governor of Texas in 2001 to ensure that the state remains in compliance with federal standards related to patient privacy (as defined by the Health Insurance Portability and Accountability Act of 1996 –HIPAA). HIPAA was the first federal legislation to address uniform privacy standards concerning patient information, and it is an important legal matter that affects all of us in significant ways. Still, it also has important implications for estate planning. If you have questions or concerns regarding your medical privacy and how it intertwines with your estate planning, the accomplished estate planning attorneys at Ibekwe Law, PLLC in Texas (512-505-2753) have the skill and legal insight you need to ensure your legal rights remain protected.
Your Healthcare Directive
For your estate plans to be comprehensive and complete, you need to address the matter of a healthcare directive, which only kicks in if you cannot make healthcare decisions on your behalf. If you have strong opinions regarding how you would like your health care to be addressed in the event you are incapacitated, the only way to effectively and definitively address them is by implementing a medical power of attorney (medical POA) that designates an agent who will make your healthcare decisions on your behalf if the need should arise.
Make Decisions on Your Behalf
For the agent assigned in your Medical POA to make important decisions about your health care in your stead, they will need to have all the relevant information about your health available to them. The Texas Medical Privacy Act, which is the state’s version of HIPAA designed to protect your privacy, can become a sticking point. To bypass this privacy protection, you will need –in essence –a waiver that provides your doctors with the authorization to disclose your private healthcare information to the named party or parties.
Authorization to Disclose Protected Health Information
In the State of Texas, the tool necessary to grant the agent of your medical POA the ability to obtain the information that they need to make serious medical decisions on your behalf is the Authorization to Disclose Protected Health Information form. This form requires all of the following:
- Your contact information
- Whom you are granting permission to disclose your private healthcare information
- Whom you are designating as the recipient of your private healthcare information
- The kind of healthcare information you are allowing to be disclosed (there are a series of boxes you can check for inclusion –such as Physician’s Orders, Progress notes, Pathology Reports –as you deem appropriate).
There are also special categories of information that you will need to initial if you want them to be included in the private information that you are requesting be disclosed, including:
- Your mental health records (excluding any notes from your psychotherapist)
- Your drug, alcohol, and/or substance abuse records
- Any HIV/AIDS test results or treatment
- Genetic information, including genetic test results
Why You Need the HIPAA Authorization
There are three primary concerns to keep in mind when it comes to your estate plan and medical privacy.
The Power to Act
Even though you may have carefully granted the agent of your medical POA, living will, or another kind of medical directive the decision-making power to make important healthcare decisions on your behalf, the medical professional in charge of your care will probably not be comfortable providing them your private medical details without a legally executed HIPAA authorization. The Texas Medical Privacy Act is in place to protect your medical privacy. This leaves you responsible for providing explicit instructions regarding when you want this protection to be overridden (the doctor in question is not likely to make this decision for you).
To ensure that your HIPAA authorization works for you, you will also need a durability clause in place. Your durability clause ensures that the powers granted in your medical POA will extend beyond any incapacitation, which means that if you become incapacitated, the medical POA will remain in effect.
Your Trust Can Also Be Affected
Your trust can also be affected by HIPAA in a way that you may not have considered. Your trust assigns a trustee who manages it according to your exacting specifications. Still, if something were to prevent your trustee from fulfilling their duty when the time comes (such as incapacitation), you might be out of options if there is no path forward toward replacing them. Again, the only way forward here is with a HIPAA authorization that allows your named replacement to obtain the medical information necessary to declare the original trustee incapacitated(according to the trust’s terms) and to step in on their behalf.
Consult with an Experienced Texas Estate Planning Attorney
Your estate plans are important to you, your family, and your legacy, and while there is a great deal of consideration involved, taking the time to get it right can give you the boost of confidence you are looking for when it comes to taking care of your family over time. The Texas Medical Privacy Act makes addressing matters related to your advance healthcare directive more complicated. The focused estate planning attorneys at Ibekwe Law, PLLC in Texas have a wealth of experience effectively and efficiently addressing complicated HIPAA-related concerns. We are well prepared to unleash these skills in defense of your rights and in support of your intentions. We are on your side, so please do not hesitate to contact or call us at 512-505-2753 for more information today.