If you have any adult high school or college aged children, they are responsible for making their own medical and mental health care decisions. Children become legal adults at age eighteen when they miraculously gain all the wisdom and insight of adulthood. At age 18, the law says that they can make their own decisions and have all the rights and benefits of adult citizens of the United States as you and I (with the exception of drinking, which is reserved until the age of 21.)
If your young adult child has an accident or is in the hospital and is unable to make medical or mental health decisions for him or herself, you would legally be unable to make those decisions for your child without his or her prior permission. It does not matter if you are the parent or your child is your dependent. If your child is an adult, the privacy rules require that all medical and mental health care providers keep all of the child’s medical and mental health information confidential. The only way that the medical or mental health information can be released to you, the parent, is if the adult child has given his or her permission to release that information to you.
You may be informed that your young adult child had an accident and is in the hospital or is otherwise incapacitated. Legally you cannot get any information from the medical or mental health care provider regarding your child’s condition or treatment. If your child is away at college, he or she could be in another town or even another state. In this situation, you can only imagine your feelings of fear, anxiety, helplessness and frustration.
And if your child remains incapacitated, unable to make medical or mental health care decisions for him or herself and has not given you prior permission to make those decisions, your only option would be to apply to the probate court for a guardianship of your adult child. Only after you have been appointed guardian would you have access to your child’s medical and mental health information and be able to make medical and mental health treatment decisions for him or her.
There is a far simpler way to avoid the guardianship and be able to access your incapacitated adult child’s medical and mental health records and make treatment decisions for him or her. All you would need to do is have your child upon reaching age eighteen, sign a properly drafted durable power of attorney for health care, also called a designation of patient advocate. In this document, your child would designate you as the health care agent or patient advocate who has access to all medical and mental health information and make medical and mental treatment decisions when he or she is unable.
With properly drafted durable power of attorney for health care for your incapacitated adult child, you should have no problem, even over the phone to another town or state, with access to your child’s medical and mental health information and making medical and mental health treatment decisions for him or her. Even if your child was not incapacitated, with a properly drafted durable power of attorney for health care, you could still have access to all of your child’s medical and mental health information and be able to have discussions with medical and mental health care providers, insurance companies, etc.
I had my son in my office on his eighteenth birthday to sign his durable power of attorney for health care. In addition, I also had my son sign a general durable financial power of attorney so that if he became incapacitated, his mother and I would have the ability to handle his financial affairs. While we were at it, he also signed his will so that any assets that he owns would be distributed to the persons that he wanted in the unlikely event of his death.
With both a financial and a health care power of attorney in place for your young adult children, you would be able to make decisions for them when they are unable, have access to their medical and mental health information and handle their financial affairs, all without having the necessity of court involvement. This is the result that most families desire.
By: Matthew M. Wallace, CPA JD
Published edited June 14, 2009 in The Times Herald newspaper, Port Huron, Michigan as: Have children sign power of attorney papers