“Plans are nothing; planning is everything”
– Dwight D. Eisenhower
Starting with the first call you receive from the nurse’s office at your child’s school, most parents are acutely familiar with the anxiety of having their child experience an injury or illness away from home. As children get older and gain more independence, those concerns can take on a new level of complexity.
Imagine that your son or daughter goes to Mexico for the infamous senior spring break trip. He or she is involved in an accident and has to be life-flighted back to the United States. When you arrive at the hospital, the doctors refuse to provide you with any details of your child’s medical condition, citing privacy laws. In addition, he or she is unconscious, yet you don’t have any authority to make medical decisions on his or her behalf.
Obviously, this situation would be every parent’s worst nightmare, but there are steps that you can take to help prepare for such an unexpected situation. Whether your adult child- age 18 or older in most states- is going off to college 30 minutes away or starting a career in a different part of the country, planning for an unexpected medical emergency now can ensure that you are in the best possible position to help your adult child should an unforeseen medical emergency arise.
Medical Power of Attorney or Health Care Directives
Current law allows adult children to be covered by their parents’ health care coverage until they are 26 years old, even if the child is married, not living at home or is eligible to be covered by his/her own employers’ plan. Many parents falsely assume, however, that this allows for a parent to make health care decisions for their child in case of emergency.
Once a child turns 18, even if the child is covered by the parents’ health care plan, the parents have no legal authority to make medical decisions on behalf of the child without a health care directive signed by the child, also known as a medical power of attorney. Without this signed document, a parent might even have to get court approval to be able to act on behalf of the adult child.
A health care directive is a signed legal document that allows the parent, or other designated individual, to make medical decisions on behalf of the child when that child is unconscious or otherwise unable to make decisions for himself/herself. The legal parameters involving health care directives can vary from state to state, so it is important to make sure that the document signed by your child complies with the laws of the state in which your child resides. You may also want to have documents in place for both the college state and the home state although one document could satisfy both state’s requirements. For students, many colleges and universities will have their own versions of these documents that you may use if you do not want to engage an attorney to prepare the documents.
The Health Insurance Portability and Accountability Act, or HIPAA, includes a provision that prohibits health care providers from sharing a patient’s medical information with outside parties. Once your child turns 18, the parent is considered an “outside party.” While the privacy rule includes a limited exemption for medical professionals to share information with a family member, this decision is based on the discretion of the care provider who may or may not share medical details with the parent. Under the previous example, parents would only be informed that their child had been in a serious accident. Any other details of their child’s condition would be withheld due to privacy laws. In order to avoid this outcome, a family would want to be sure that the health directive signed by the adult child includes a HIPAA authorization. This is the only way parents would be guaranteed to receive medical information about their adult child.
While many samples of health care directives and HIPAA authorizations can be found online, an attorney should be consulted to ensure provisions comply with state law. Rules differ from state to state including things like whether or not the document needs to be notarized or witnessed or both. Once the document is drafted, its important to review the document annually or as adult children may move to different states. In addition, be sure to keep a copy of the document in digital format so it can be emailed quickly in case of emergency.
Consult with your Great Plains Trust Team
At Great Plains Trust Company, our team of trust attorneys offers decades of experience in working with families on estate planning strategies. Our attorneys are available to review your existing estate planning documents, including powers of attorney for you and your adult children, to ensure that your intentions are properly documented. For further information for how we can assist your family with your ongoing wealth management needs, contact our office at 888-529-2776.