It is the high school graduation season and now time for my annual column for young adults. If you have any adult high school or college aged children, they are responsible for making their own medical and mental healthcare 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 healthcare 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 healthcare providers keep all of the child’s medical and mental healthcare information confidential. The only way that the medical or mental healthcare information can be released to you, the parent, is if you have been appointed by your child or the probate court 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. Without an appointment, legally you cannot get any information from the medical or mental healthcare 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 healthcare 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 healthcare information and be able to make medical and mental healthcare treatment decisions for him or her.
There is a far simpler way to be able to access your incapacitated adult child’s medical and mental healthcare records and make treatment decisions for him or her and also to avoid the guardianship proceedings. All you would need to do is have your child, upon reaching age eighteen, sign a properly drafted durable power of attorney for healthcare, also called a designation of patient advocate. In this document, your child could designate you as the healthcare agent or patient advocate who has access to all medical and mental healthcare information and make medical and mental treatment decisions when he or she is unable.
With properly drafted durable power of attorney for healthcare 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 healthcare information and making medical and mental healthcare treatment decisions for him or her.
Even if your child was not incapacitated, with a properly drafted durable power of attorney for healthcare, your child can give you access to all of your their medical and mental healthcare information. You then would be able to have discussions with medical and mental healthcare providers, insurance companies, medical billers, etc.
My son Luke was in my office on his eighteenth birthday to sign his durable power of attorney for healthcare. While we were at it, Luke also signed a general durable financial power of attorney and his will.
With the financial powers of attorney, my wife Emily and I have the ability to handle Luke’s financial affairs if he became mentally incapacitated. Without the financial power of attorney, we could not make his financial decisions or handle his financial affairs during his incapacity. In such case, we would have to petition the probate court for a conservatorship for the financial affairs, which is separate from a guardianship. The court would then supervise and approve all expenses.
Luke also signed his will so that any assets that he owns would be handled by and distributed to the persons that he wanted in the unlikely event of his death.
My daughter Elizabeth was in Chile two years ago when she turned 18, so we were unable to put the same protections in place for her at that time. However, when Elizabeth came home several months later, she signed her financial and healthcare powers of attorney and her will.
With both financial and healthcare powers 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 healthcare 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 May 27, 2012 in The Times Herald newspaper, Port Huron, Michigan as: Making better health care decisions for young adults