A crucial part of your estate plan should be to map out what happens to you if you are critically injured or suffer from a terminal illness. Otherwise, your family and doctors will be forced to act on your behalf. A living will is a legal document that enables you to issue your wishes in writing when it comes to the medical procedures you do or do not want in the event you fall into a coma, suffer from a terminal illness, or are hit with a serious injury from which you are not expected to recover.

HIPAA

While creating a living will is an excellent planning option, its legality may fall into question if it is not HIPAA compliant. HIPAA stands for the Health Insurance Portability and Accountability Act, which was created in 1996. Since that time, all living wills and medical directives are required to have certain provisions that are compliant with the aforementioned HIPAA regulations.

However, the rules surrounding HIPAA compliance were not made public by Congress until 2001 (the HIPAA Privacy Rule), so if your living will document was created before then, there is a possibility it is not HIPAA compliant, which means you need to go through the entire process once again.

What Are the HIPAA Rules?

The purpose of HIPAA is to ensure your medical information remains private. Any medical facility in possession of patient information is bound by HIPAA rules and will be severely punished if found to be in breach. This means medical staff need to be guarded in conversation, avoid gossip in the workplace, dispose of information correctly, and avoid disclosure of patient information to third parties without the patient's express consent.

Every disclosure violation is $100, and if the violation is deemed to be "knowingly" committed, the punishment can be fines of up to $50,000 and a prison sentence of up to 12 months for the guilty party. Patient information obtained or provided under false pretences will lead to a $100,000 fine and five years in jail. Wrongful sale, use, or transfer of patient information can lead to a $250,000 fine and 10 years in jail.

So What's the Problem?

If a loved one is involved in an accident, you may not be able to get medical information from a doctor. Unless your loved one has specifically outlined that you are to receive this information in a living will or medical directive, doctors will be forced to leave you in the dark.

In order to prevent such a situation from occurring, you need to have the correct medical release language that complies with HIPAA rules when it comes to a living will, durable power of attorney, and health care power of attorney.

If you do nothing, you may be forced to sign doctor or hospital forms in extremely stressful situations. As a result, these documents may not reflect your choices and could also contain confusing legal jargon. If your living will document was created before 2001, make sure you get in touch with a knowledgeable attorney to ensure your documentation is right. In Arizona, the Gilbert HIPAA compliance lawyers at Cholewka Law are a great resource.