For most of your child's life, you've been responsible for managing their healthcare, and any significant assets intended for them. When they wake up on their eighteenth birthday, you still see your beloved child—but the law sees a legal adult. That legal adult has certain responsibilities and rights, including the rights to privacy regarding their medical records and the right to manage their own financial affairs.
In a perfect world, your child will remain in excellent health, able to gradually transition to managing their own health and wealth, and consulting with you for advice as needed. But what happens in the event of a sudden health crisis, like an injury from a car accident, a stroke, or a severe allergic reaction? While the odds are in favor that your child will not suffer a sudden, serious illness, their world and yours, could be thrown into disarray if they do.
Is there a way to protect both their autonomy as an adult, and their interests should they suddenly become incapacitated? Fortunately, yes. And while the cost of that protection is relatively low, the peace of mind it can provide is priceless.
If your young adult child has a medical emergency and is legally incapable of making their own medical decisions, what happens next? What is your role? If you are not sure of the answers to those questions, your child needs to put in place a durable power of attorney for healthcare. With a durable power of attorney for healthcare, you (or another person your child chooses) can make treatment decisions for your adult child, if he or she is unable to do so.
A durable power of attorney for healthcare can be a “springing” power. That means that your authority to make care decisions springs into action only when needed. You don’t have any power to make your child’s healthcare choices for them as long as they are capable of doing so. Your estate planning attorney can prepare a durable healthcare power of attorney granting you as much or as little authority as your child is comfortable with.
What if your child is not incapacitated, but wants his or her medical providers to be able to communicate with you? In that case, your child needs to sign a HIPAA authorization to allow you to receive his or her medical information from care providers. The Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA, preserves patient privacy and limits who can have access to patient information without the patient’s consent.
Your child may be willing for you to have access to some types of medical information, but not others. For instance, your daughter may be willing for you to speak with her allergist, but not her gynecologist or therapist. She can execute a form for only those care providers she is willing to authorize to communicate with you. To the extent she receives all her care at one facility, such as university health services, she can choose to limit the types of information she is willing to have released.
Your child will not need to consult with an attorney regarding HIPAA releases/authorizations (her care providers should have standard forms available) but it’s best to work with an estate planning lawyer regarding a healthcare power of attorney, so that you and your child will understand your options and have a power of attorney that is crafted to meet your child’s specific needs.
Like a durable power of attorney for healthcare, a durable financial power of attorney can be made to spring into effect only if and when it is needed. It can also be customized to grant very broad powers, or very specific and limited ones. Actions you may be able to take on your child's behalf with a durable financial power of attorney include:
While a power of attorney can be used to give you fairly broad authority to act on your child’s behalf, your actions must, of course, still be in their best interests. As their parent, that’s probably fine with you. After all, you spent the first eighteen years of their life providing for your child and keeping him or her safe.
Your child may be a legal adult now, but he or she could still need your help. Without powers of attorney in place, if your child should be suddenly incapacitated, you would need to go to court to pursue guardianship or conservatorship to allow to to make decisions on their behalf. If you or your child have questions about durable powers of attorney, we invite you to contact our law office.