Privacy and confidentiality for my clients is an important issue. Many of my clients have significant net worth and are concerned about identity theft, scams, family conflict and other matters. Most of my clients are dealing with designating or having to designate persons to care for them in the event of incapacity or ill health. Everything a client tells me is protected by attorney-client privilege which we take very seriously.
Almost 20 years ago federal Health Insurance Portability and Accountability Act (HIPAA) was passed. Although at the time it was primarily designed to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs – and it was driven by the AIDS crisis, as many of my clients know – it “spilled” into the legal field shortly thereafter. It becomes applicable to my clients’ estate planning because often the designated agents need access to the client’s medical information in order to talk to physicians and to get the documentation that mom or dad are no longer competent to make medical decisions. All of my clients sign HIPAA releases in favor of their designated agents to eliminate any issue in this regard. However, more and more often I am reading about the failure of the privacy concerns that drove HIPAA due to the electronic records and the data bases associated with it. Fortunately, I have no knowledge of any requirements or proposals for requirements to make legal documents electronic or public record until they are actually needed in a legal proceeding (ie. Probate or a guardianship) but I this this article by William F. Pewen is interesting.