HIPAA and Your Living Trust in Pennsylvania

A common misconception in Pennsylvania estate planning is that a revocable living trust — because it "takes over" if you become incapacitated — also gives your successor trustee the ability to talk to your doctors and access your medical records. It does not. HIPAA is a separate federal statute with its own consent requirements, and no state trust document overrides it.

For Pennsylvania residents building an incapacity plan around a living trust, HIPAA authorization is the missing piece that makes the trust actually work when it matters most.

What HIPAA controls, and what a living trust controls

The Health Insurance Portability and Accountability Act (45 C.F.R. Parts 160 and 164) restricts who can access your protected health information. Doctors, hospitals, insurers, and pharmacies can only release your records to you or to people you have authorized in writing on a HIPAA-compliant form.

A Pennsylvania revocable living trust governs your assets — bank accounts titled to the trust, real estate deeded to the trust, brokerage accounts, business interests. It designates a successor trustee who steps in if you cannot act. But the trust document contains no medical authorization, and hospitals will not accept it as one.

The gap: your successor trustee needs to make trust decisions that depend on medical facts — Are you actually incapacitated? Is this a temporary hospitalization or a permanent decline? Should we distribute funds for a specialized care setting? Without HIPAA authorization, they cannot get the information they need to act.

Why the incapacity trigger fails without HIPAA

Most Pennsylvania revocable living trusts define incapacity by reference to a physician's written determination. The trust says something like: "The Trustor shall be deemed incapacitated upon the written certification of two licensed physicians."

If the successor trustee cannot legally ask a physician for that certification, the trigger cannot be pulled. The bank asks the successor trustee for proof of the Trustor's incapacity. The successor trustee asks the doctor. The doctor cites HIPAA and refuses. The trust freezes.

We see this play out in Pennsylvania families more often than any other single trust-administration problem.

The HIPAA authorization you actually need

A workable HIPAA authorization for use with a Pennsylvania living trust should:

• Name your successor trustee(s) by name and role.
• Name your healthcare agent under your advance healthcare directive — usually the same person, sometimes different.
• Cover all providers — not just "my current physician."
• Include mental health and substance abuse information explicitly if you want those disclosed (default HIPAA rules treat these more restrictively).
• Have no expiration date, or a very long one, so it is still valid when needed.
• Be signed and dated by you while you have capacity.

Some Pennsylvania estate planning attorneys build the HIPAA language into the trust itself. Others use a stand-alone authorization. Either can work; what does not work is skipping it.

Coordinating three documents

For Pennsylvania seniors especially, the incapacity plan should coordinate three separate documents:

1. The revocable living trust — controls trust assets when you cannot.
2. The Pennsylvania durable financial power of attorney — controls non-trust assets when you cannot. Must comply with Act 95 of 2014.
3. The healthcare directive plus HIPAA authorization — controls medical decisions and information access.

The trustee, financial agent, and healthcare agent do not have to be the same person, but the HIPAA authorization should cover all of them.

What happens if you skip the HIPAA piece

Common Pennsylvania outcomes when only the trust is in place:

• Adult children are told at the hospital they cannot get information.
• The successor trustee cannot obtain the physician certifications the trust requires to activate.
• Time-sensitive decisions — nursing home placement, Medicaid applications, discontinuing a lease — stall.
• Families end up filing for guardianship in the Orphans' Court despite having a "complete" trust — the exact outcome the trust was supposed to avoid.

Related planning for Pennsylvania residents

• Revocable living trust mechanics: Revocable Living Trusts in Pennsylvania.
• Power of attorney requirements: Pennsylvania Power of Attorney in 2025.
• Senior-stage planning: Estate Planning for Seniors in Pennsylvania.
• Inheritance tax on trust assets: Pennsylvania Inheritance Tax Guide.

Next steps

If you already have a Pennsylvania living trust and are not sure whether it is paired with a valid HIPAA authorization, bring the trust binder to a no-cost review. In most cases the fix is a single one-page authorization signed and distributed to your named agents.