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Caring For Generations

Guardianships and Guarding Health Information

by | Aug 16, 2023 | estate and tax planning, Estate Planning, Guardianship, guardianships

A new statute in Indiana addresses the dilemma health providers face when asked to provide confidential information about an incapacitated individual…

Up until now, problems have arisen when:

  • Incapacitated people are too ill (physically and/or mentally) to provide written authorization allowing their medical providers to release information to anyone.
  • There is no other person to whom the patient has given Power of Attorney.
  • An individual already under guardianship is trying to prove that he or she is now healthy enough to warrant the guardianship being terminated.
  • A health care provider possesses medical evidence of capacity or incapacity about an individual but is not willing to disclose that evidence without written authorization or court order.

While this very issue has long been addressed under federal HIPAA laws, the new statutes codifies a procedure here in Indiana by which any interested party may petition a probate court to issue a confidential health disclosure order against any health care provider.

At Geyer Law, we stress to our clients how important it is to plan ahead for healthcare needs and possible future incapacity. In fact, it was just two years ago that the State of Indiana broadened the choices for making health care wishes known, creating a single document called an Advance Directive for Health Care Decisions, in which you not only state your wishes concerning end-of-life treatment (life-prolonging procedures/resuscitation, palliative treatment/ nutrition/hydration) and your wishes for post death actions (burial/cremation, anatomical gifts), but also appoint a health care representative to consult with providers, making health care decisions on your behalf.

Both physical and behavioral health providers are covered entities under HIPAA, the Health Insurance Portability and Accountability Act, signed into law in 1996. HIPAA covers three basic sets of rules concerning privacy, security, and breach notification. The basic goal is to make sure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high-quality healthcare, and to protect the public’s health and well-being.

Legal guardianship in Indiana authorizes a person to care for an incapacitated adult or minor child. That care may involve attending to another’s personal needs, managing their financial affairs, or both. The new statute is all about helping establish guardianships when they are needed and no other alternative is available to meet the needs of the incapacitated individual.

– by Cara Chittenden, Attorney with Rebecca W. Geyer & Associates blog team