Estate planning Health Care Proxies and HIPAA Disclosures

May 9, 2022

John Brennan, Senior Vice President of Trust and Financial Services at Cape Ann Savings Bank in Gloucester, Massachusetts explains healthcare proxies and HIPAA disclosures. He talks about how they work and how to set them up.

Listen to Podcast

Podcast Transcription:

Transcription Disclosure: Below is a transcript of the conversation between John Maher and John T. Brennan. Please note, this is an unedited "word for word" rendition of the actual conversation and is not intended to be grammatically correct.

John Maher: Hi, I'm John Maher. I'm here today with John Brennan, Senior Vice President of Trust and Financial Services at Cape Ann Savings Bank in Gloucester, Massachusetts. Today, our topic is estate planning, healthcare proxies and HIPAA disclosures. Welcome John.

John Brennan: Hi John.

What Is a Healthcare Proxy?

John Maher: So, John, we'll start with healthcare proxies. What is that?

John Brennan: A healthcare proxy is a document where, essentially, think of your doctor asking you, "If you can't speak for yourself, who do you want to speak for you?" A healthcare proxy is just that, just as we were talking about powers of attorney, a healthcare proxy is the same idea in the healthcare setting. If you are unable to speak, if you are in a coma, who is the person who should be making your medical decisions on your behalf? That person is your healthcare proxy.

How Do You Establish a Healthcare Proxy?

John Maher: Okay. And is that a legal document that needs to be set up, and signed in order for that to be official?

John Brennan: Yes. The reason we're talking about it is, typically, it's something you get as part of an estate planning suite, but it's also something that you might have on file at your doctor's office, or when you go in for a procedure, if you're half of a couple, you might sign one of those and put it on file to be there, again, in case of emergency break glass. It is one of those documents that you might just have in your back pocket, just in case.

What Are HIPAA Disclosures?

John Maher: And then, the next thing that we want to talk about is HIPAA disclosures. And that's H-I-P-A-A, the Health Insurance Portability and Accountability Act. What is the HIPAA disclosure and how does that fit in with an estate planner?

John Brennan: First of all, a little bit about the Health Insurance Portability and Accountability Act. What that is, is that as a series of protections around your healthcare information. So, what that means, it's a limitation on, say, a medical place's ability to share your medical information without your permission. So, HIPAA is something where, again, if you're unable to act, and somebody might want to know more about your medical condition, the HIPAA is something that could prevent that. Or you could run into a challenge with HIPAA where you'd want to have that HIPAA, just to clarify, this person is in a place of trust and confidence, especially if it's usually combined with a healthcare proxy, because that gives the person authority to act on your behalf if you're unable to.

Difference Between Healthcare Proxy and HIPAA Disclosure

John Maher: Okay so, the healthcare proxy lets them act on my behalf. And then, the HIPAA disclosure allows them to view my medical records, right? To be able to see that?

John Brennan: Both access medical records and, potentially, share medical records. Probably would come up if say, a healthcare provider's out of network, or something like that. And the hospital had some aversion to sharing it. You would say, "Hey, look, here's the HIPAA. I have the authority to act, present that, and do what I ask you to do, please."

Importance of Healthcare Proxies and HIPAA Disclosures in Estate Planning

John Maher: So, put this into context with an estate plan. Why are these documents an important part of an estate plan? Why are they part of that package that you were talking about?

John Brennan: Well, they're complimentary. One of the things here too, to kind of bear in mind, is when people are married, typically, you're going to get a certain amount of leeway.

But even until a few years ago before gay marriage was legally recognized, HIPAA and healthcare proxy would go hand-in-hand for certainly a same sex couple where the hospital might say, "Well, what's the legal relationship between you two partners" so it's really for certain scenarios, you may be less likely to need it, but it certainly completes the picture, completes the package, and makes sure that someone would be able to both make good decisions, and have the necessary information to make good decisions in their role as healthcare proxy.

Because, of course, a healthcare proxy would want to know something like you've had renal failure off and on for 10 years, or something like that. They might want to know you had a preexisting condition before they make a consequential medical decision for you. So, it makes sense that they would need to see your medical records here.

Can You Have Multiple Health Care Proxies?

John Maher: Are there different types of healthcare proxies, or is it just one thing? And can you have multiple proxies? And who would your proxies be?

John Brennan: Yeah, I really wouldn't. I think you want your healthcare proxy to be somebody who cares about you, and you trust. I don't think you'd want to have more than one. I think that would get very complicated. Remember, a healthcare proxy comes up probably in a medical emergency. So, time is of the essence, there's really not a lot of stuff... People don't have the time to sort of carefully read a well-constructed legal document that says from the waist up, this person makes decisions. From the waist down, this person does, that would be absurd. So, you're really going to want to have somebody who's not only one person, but also accessible.

How to Choose Your Healthcare Proxy

John Brennan: One of the things I talk to people, and this sort of gets into the tips is that you want that person, hopefully, who's somebody who answers their phone. Certain people are very busy. I talk to elders and it's often a question of like, well, which one of your kids would be most likely to be accessible in an emergency? Who's nearby? Who's going to pick up the phone? These are practicalities, which are just worth paying a certain amount of mind to when you make these decisions.

John Maher: Right so, maybe your son who's living in another country, and wouldn't be able to make it back very quickly, that sort of thing might not be the best choice. It might be your daughter who is living the next town over, or in state with you, something like that.

John Brennan: Absolutely. Yes. These are the types of decisions, I think make a lot of sense to pick somebody who's available. Yep.

Talking to Your Healthcare Proxy About Your Wishes

John Maher: Should you really sit down with your healthcare proxy too, and really talk to them about what your thoughts are, especially on things like end of life care. For example, in this situation, I wouldn't want to… if you had an injury where you were in a coma or something like that, I really wouldn't want to live like that. Is that the kind of conversation that you should have with the healthcare proxy?

John Brennan: Yes, ideally. And typically, let's face facts, so these healthcare proxies, typically, become more relevant with end of life and especially with elders because elders are more apt to have a sense of their mortality. And they're more apt to have thought about it and made some decisions.

One of the things that is common is that elder that's living alone, when the emergency services comes to the door, if there's an emergency, they're going to go to the front of the fridge, and that's where they're going to find, or they're going to look for proxy information, medical information, and HIPAA disclosures. So, this is something people might not be aware of, but that's where they're going to look for those types of instructions. So, think of that. They're in your house, you're on a stretcher, you could be unconscious, but that's where they're going to look for that kind of information. And if they can't find it really that quickly, they're going to do what they're told to do, which most likely is provide whatever medical procedure is going to sustain your life. And that's not always what people want.

There's cases where you can have very elderly, frail people. If they get resuscitated, you can break their sternum, and they can wake up in a world that they don't want to be in anymore. That's kind of the worst case scenario, but that's the reason why these documents exist. And even when you're in that kind of circumstance, these can be ignored because healthcare providers, it's just not in their instinct to say, "Ah, stop treatment." That's not their impulse. They're going to try and help you, and save your life even though, so a healthcare proxy has to be very robust if it says anything besides "sustain the life".

Give Your Medical Providers Copies of Your Healthcare Proxies and HIPAA Disclosures

John Maher: Any other tips or advice on using healthcare proxies, and about HIPAA disclosures in terms of being part of an estate plan?

John Brennan: Whenever you go to your medical office, whenever you go to your doctor's office, if you go to the hospital with your spouse, or with a friend for a procedure, it probably makes sense for this to come up when you're registering. They might say "Hey, do you have a healthcare proxy?" Or you might ask "Hey, do you have a HIPAA that I can just sign to make sure you have it on file?" I have one at home but..." Again, it's like when you go to the bank and you put your DPOA, or your durable power of attorney on file, it makes sense to do that as you go to familiar medical settings, so people have that.

And then, the other thing too, vis a vis elders, you really want to have these documents for elders. And there is a whole suite of items, that… if you have an elder, a vulnerable elder, think about this idea of having something on the fridge and talk to their care provider about setting something like that up because different states have different rules about what they're going to honor in these emergency situations.

And realize it's going to be an emergency situation when it's relevant. It's not going to be in the calm of your doctor's office, where you're sitting across the table. Somebody's probably going to be on a stretcher. You need to think practically about the setting and circumstances in which something like this would be needed.

Contact Cape Ann Savings Bank to Learn More

John Maher: All right, that's great advice. John, thanks again for speaking with me today.

John Brennan: Sure thing, John.

John Maher: And for more information, contact Cape Ann Savings Trust and Financial Services at 978-283-7079. Or visit the website at capeannsavings.bank.

Investments purchased through the Cape Ann Savings Trust and Financial Services Department are not FDIC insured, not FDIC guaranteed, not bank guaranteed, and may lose principal value.