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Medical Record
With high school graduation behind us, many parents will soon watch their children become adults (at least in the eyes of the law) and leave home to pursue their education and career goals.
Turning 18, graduating from high school, and moving out are huge accomplishments. It also comes with some serious responsibilities that probably aren’t at the forefront of their (or your) mind right now. Once your children become legal adults, many areas that were once under your control are now solely up to them.
Here’s the big one: Before they turned 18, you had access to their financial accounts and had the power to make all of their healthcare decisions. After they turn 18, however, you’re no longer able to do either.
Before your kids head out into the world, you should discuss and have them sign the following estate planning documents, so if they become incapacitated, you can easily access their medical records and financial accounts without having to go to court. Signing these documents will ensure that if they ever do need your help and guidance, you’ll have the legal authority to easily provide it.
Medical power of attorney
Medical power of attorney allows your child to name an agent (like you), who has the power to make healthcare decisions for them if they’re incapacitated and cannot make such decisions for themselves. For example, this authority allows you to make medical decisions if your child is knocked unconscious in a car accident or falls into a coma due to an illness.
That said, while medical power of attorney would give you authority to view your child’s medical records and make treatment decisions, that authority only goes into effect if the child becomes incapacitated. This means that unless your child is incapacitated, you do not have the authority to view their medical records, which are considered private under Health Insurance Portability and Accountability Act (HIPAA).
HIPAA authorization
Passed in 1996, HIPAA requires health care providers and insurance companies to protect the privacy of a patient’s health records. Once your child becomes 18, no one — even a parent — is legally authorized to access his or her medical records without prior written permission.
But this is easily remedied by having your child sign a HIPAA authorization that grants you the authority to access his or her medical records. This can be critical if you ever need to make informed decisions about your child’s medical care.
Living will
While medical power of attorney allows you to make medical decisions over your child’s ongoing healthcare if they’re incapacitated, a living will provides specific guidelines for how their medical care should be handled at the end of life.
While becoming terminally ill or getting injured in a major accident are morbid topics for discussion — especially for seemingly invincible young adults — unfortunately accidents, injury, and illness know no age. Even though it might be uncomfortable, it’s important to sit down with your child and have a candid discussion about end-of-life care.
Your child may have certain wishes for their end-of-life care, so it’s important you discuss these decisions with them and have such provisions documented in a living will. For example, a living will allows the child to decide when and if they want life support removed if they ever require it. Since these are literally life-or-death decisions, you should document them in a living will to ensure they’re properly carried out.
A living will details how they want medical decisions made for them, not just who makes them. But such power only goes into effect if the child is terminally ill, which typically means they have less than six months to live. And two doctors need to make the determination that they won’t recover before the living will even kicks in. This is a situation where, for all intents and purposes, they are already deceased except for the fact that life support is keeping them alive. Making these decisions in advance spares parents the guilt of trying to guess what their child would want and gives them permission to let go.
Durable power of attorney
In the event your child becomes incapacitated, you’ll also need a durable power of attorney to access his or her financial accounts. If you do not have a signed, financial durable power of attorney, you’ll have to go to court to get access.
While medical power of attorney will authorize you to make healthcare-related decisions on their behalf, durable power of attorney will give you the authority to manage their financial and legal matters, such as paying bills, applying for Social Security benefits, and/or managing banking and other financial accounts.
If your child is getting ready to leave the nest to attend college or pursue some other life goal, then it’s time to help your child articulate and legally protect their healthcare and end-of-life wishes.
NORELL ALBANIS is an estate planning attorney in Naples, FL, and can be reached at 239-314-2353 or by visiting albanislaw.com.