The Tragically HIPAA-less: Why Keeping Estate Plans Up to Date Is So Important

By Alma V. Miklasevics

Even the most thoughtful, well-crafted estate plan can become a disaster without proper maintenance. The reason is simple: life is change. Some of that change stems from our own choices. Some of it does not. In the estate planning context, HIPAA waivers are a good example of the second type of change. Let’s talk about why keeping estate plans up to date is so important.

What is a HIPAA Waiver and Why is it Important?

First, HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. It is a federal law and one of its primary functions is to protect patient health information. The final version of that law’s privacy rule took effect in 2003. Full compliance, however, was not mandated until 2005.

A HIPAA waiver (aka HIPAA authorization), on the other hand, allows a healthcare provider or health insurance company to share your health information with whomever you designate.

Without one, your family (or anyone else you’ve chosen) may not be able to get you in to see the right doctor, or make sure that you receive the right treatment, or explain your prior medical history to the treating physician, or pay your medical bills, or help care team members understand your full medical needs, or complete the necessary paperwork for Medicare, Medicaid, or insurance reasons.

The good news is that if you created an estate plan or updated an existing plan any time in the last 10 years, you almost certainly have one in place. But if your estate plan is more than 10 years old and hasn’t been updated, it is long past time to have it reviewed by an experienced estate planning attorney.

Other Reasons for Routine Estate Plan Check-Ups

Big events such as a divorce, a death in the family, or the birth of a new grandchild will frequently get people to update their estate plans at some point. Smaller life changes, though—like a shift in our own values or changes in the life circumstances of a beneficiary—these don’t get noticed as much. Yet they can undermine the purposes of an estate plan in a huge way.

Questions to consider include:

  • Have you moved to or purchased property in a new state? The Uniform Probate Code was adopted in its entirety by Minnesota, but only 15 other states have done likewise. Other states may have peculiarities in their laws that could impact the effectiveness of your plan.

  • Have there been relevant changes in state or federal law? The 2018 tax reform bill passed by Congress may cause some adverse issues, but may also provide new opportunities that could benefit you.

  • Has there been a major change in your financial circumstances or estate assets? A substantial increase or decrease in the value of your estate could require changes in your estate plan. The same holds true if you’ve sold or purchased any important assets since you created the plan or last updated it.

  • Do you feel differently about any of your beneficiaries or the people you’ve chosen to serve as personal representatives, trustees, guardians, or conservators? It could be you’ve learned there may be a substance abuse or gambling problem. Maybe someone you held in high esteem has since revealed character traits or flaws that are at odds with your values. Whatever the case, you may need to make a change.

Health reasons, distribution requirements of 401k’s and other qualified plans as you near retirement age, children reaching the age of adulthood, a spouse qualifying for Medicaid — these could also go on the list, but let’s stop there for now.

The bottom line: Have your estate plan reviewed at least every three years, whether you think you need to or not. Consider it routine maintenance, like taking your car in for an oil change. It’s a small investment, and it frequently pays large dividends.

If you have any questions about HIPAA waivers or other updates your estate plan might need, we can help. We invite you to contact Mundahl Law to discuss your questions and estate planning concerns.

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