It is the high school graduation season and now time again 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 health care decisions.
Children become legal adults at age eighteen when they miraculously gain all the wisdom and insight of adulthood. At age eighteen, 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 twenty-one).
If your young adult child has an accident or is in the hospital and is unable to make medical or mental health care decisions for him or herself, you would legally be unable to get any information, let alone 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 your child’s medical and mental health care information confidential. The only way that the medical or mental health care information can be released to you, the parent, is if you have been appointed patient advocate by your child or guardian by the probate court.
You may be informed that your young adult child had an accident and is in the hospital or is otherwise incapacitated. Without a patient advocate or guardian appointment, 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 care information and be able to make medical and mental health care 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 health care records and make treatment decisions for him or her and also to avoid most guardianship proceedings. All that would need to be done is that 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 could designate you as the health care agent or patient advocate who has access to all medical and mental health care information and who can 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 be able, even over the phone to another town or state, to have access to your child’s medical and mental health care information and make medical and mental health care treatment decisions for him or her.
Even if your child was not incapacitated, with a properly drafted durable power of attorney for health care, your child can give you access to all of his or her medical and mental health care information and records. You then would be able to have discussions with medical and mental health care providers, insurance companies, medical billers, etc. Your child can also give you the power to sign releases of that information to other health care providers or insurance companies.
My son Luke was in my office on his eighteenth birthday to sign his durable power of attorney for health care. While we were at it, Luke also signed a general durable financial power of attorney and his will.
With the financial power 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 to handle Luke’s financial affairs.
A conservatorship proceeding is separate from a guardianship proceeding. And the court would then supervise and approve all expenditures.
Luke signed his will so that in the unlikely event of his death, any assets that he owns would be handled by and distributed to the persons whom he wanted.
My daughter Elizabeth was in Chile five years ago when she turned eighteen, so she could not come to my office to put in place the same protections at that time, as we did for Luke. However, when Elizabeth came home several months later, she signed her financial and health care powers of attorney and her will.
Since that time, we have assisted families with children who are turning eighteen when they are out of the country. By preparing the financial and health care powers of attorney and will ahead of time, the documents can be put in place when the child reaches age eighteen. All the child would need to do upon turning age eighteen, is to go to the nearest U.S. embassy with the unsigned documents. At the U.S. embassy, the child would sign the documents and have them witnessed and notarized.
With both financial and health care powers of attorney in place for your young adult children, you would be able to 1) make medical and mental health care decisions for them when they are unable, 2) have access to their medical and mental health care records and information, and 3) 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 31, 2015 in The Times Herald newspaper, Port Huron, Michigan as: Young adults and health care decisions