Another year has gone by and it is the graduation season again. It is now time for my annual column for young adults. If you have any adult high school or college-aged children, do you know who can make their medical and mental health care decisions when they cannot?
Children become legal adults at age 18 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, and in some states, smoking, which are reserved until the age of twenty-one).
Since your child is an adult, the only persons who can access medical information and make medical or mental health care decisions for them when they cannot is someone your child appoints or someone the court appoints. 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 any medical treatment decisions for your child without prior permission from your child or from the court. It does not matter if you are the parent or your child is your dependent.
The privacy rules under the Health Insurance Portability and Accountability Act (HIPAA) and other laws require that all medical and mental health care providers keep all of your adult child’s medical and mental health care information confidential. The only ways that the medical or mental health care information can be released to you, the parent, is if you have been appointed patient advocate or HIPAA personal representative by your child or appointed guardian by the probate court.
We had a difficult situation come through our office not too long ago. The parents of a young woman away at college on the other side of the state received a call from one of their daughter’s friends. They were told that their daughter collapsed and was unable to be revived with CPR at the scene. She was taken away by ambulance to the hospital with CPR continuing. They called the hospital, but the hospital refused to release any information about their daughter since their daughter had not appointed them as patient advocates, nor given them HIPAA access to her medical information.
You can only imagine their feelings of fear, anxiety, helplessness and frustration. They did not know if she was alive or dead. They ended up going to probate court to get themselves appointed temporary guardians so they could get information about and make decisions for their unconscious daughter. They then followed up as full guardians until their daughter was well enough to make her own decisions again.
This whole scenario could have been easily been avoided. There is a far simpler way to be able to access your incapacitated adult child’s medical and mental health care information and make medical and mental health care treatment decisions for him or her, and also to avoid most guardianship proceedings. All your child would need to do is sign a properly drafted durable power of attorney for health care, also called a designation of patient advocate, and a HIPAA personal representative appointment, access and release authorization.
In these documents, your child could designate you as patient advocate who can make their medical and mental health care treatment decisions when they are unable and designate you as their HIPAA personal representative who has access to all their medical and mental health care information.
With a properly drafted durable power of attorney for health care and a HIPAA authorization 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 your child when he or she cannot.
Even if your child was not incapacitated, with a properly drafted durable power of attorney for health care and HIPAA authorization, your child can give you full access to all of his or her medical and mental health care information and records. Since your child is most likely still on your health insurance, 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 18th 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. 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.
With the financial power of attorney, my wife Emily and I had the ability to handle Luke’s financial affairs if he became mentally incapacitated. Without the financial power of attorney, we would not have been able to make his financial decisions or handle his financial affairs during his incapacity. In such case, we would have needed to petition the probate court for a conservatorship to handle Luke’s financial affairs. A conservatorship proceeding is separate from a guardianship proceeding. With a conservatorship proceeding, the court would then supervise and approve all expenditures. Thankfully, we did not need to use any of these documents. And now that Luke is married, he has updated his estate planning documents so his wife Breezy has now taken on those primary roles.
My daughter Elizabeth was in Chile on a Rotary Youth Exchange seven 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 when he turned 18. 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 other families with children who are turning 18 when they are out of the country. We can prepare the financial and health care powers of attorney and will ahead of time with blanks for date, witnesses and notary. When the child reaches age eighteen, all he or she would need to do is to go to the nearest U.S. Embassy with the unsigned documents. At the U.S. Embassy, the child would sign and date the documents and have them witnessed and notarized. All of the documents would then be put in effect.
In addition to having the documents in place, it is also a good idea to subscribe to an emergency card service such as DocuBank® in which an emergency contact list, medical information and copies of all medical directives, including health care powers of attorney and HIPAA authorizations, are kept on a secure server. An emergency card with access instructions is kept in your child’s wallet. Your child’s emergency contacts and medical information and documents can be accessed at anytime, anywhere in the world using the instructions on the card, so long as there is either a phone and fax or a computer internet connection.
With financial and health care powers of attorney and a HIPAA authorization in place for your young adult children, you would be able to: 1) handle their financial affairs; 2) make medical and mental health care decisions for them when they are unable; and 3) have access to their medical and mental health care records and information; all without having the necessity of court involvement.
By Matthew M. Wallace, CPA, JD
Published edited May 7, 2017 in The Times Herald newspaper Port Huron, Michigan as: Medical decision-making for your young adult child