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As a parent, you have always made medical decisions for your child. When your child turns 18 years old and is recognized as a legal adult, however, that ability disappears. Because of health care privacy laws (HIPAA), you also lose access to their medical records, even though you likely took your child to the doctor and were present for the appointments and procedures, picked up prescriptions for them and more.
Unless your child has named you their patient advocate under a patient advocate designation, you can be left powerless when your child needs you most. From unexpected illness to sports injuries and auto accidents, too often parents do not realize the need for this important legal document until it is too late and their high school or college student is no longer able to name a patient advocate. Parents in this situation will find themselves in probate court, paying significant fees and losing precious time. To prevent this from happening to your family, a few simple legal documents are all you need.
Patient Advocate Designation
First, your young adult child should execute a patient advocate designation and living will, naming patient advocates to make medical decisions on their behalf in the case of incapacity. In the living will portion of the same document, your child can state their preferences for end-of-life scenarios. While never an easy decision, knowing what an individual’s preferences are takes some weight off of those left to make this decision.
Medical Authorization
Your young adult child should also execute a Health Insurance Portability and Accountability Act (HIPAA) medical authorization. The ability to make informed decisions for your child when named as a patient advocate will not do much good if you are not able to get the relevant information about your child’s condition. The HIPAA waiver tells doctors and other medical personnel that they can provide you with your child’s medical information without violating the law. Often, this authorization is included as part of the patient advocate designation and living will.
Financial Power of Attorney
Another important document is a financial power of attorney, which should also be executed so that in the case of your child’s incapacity, you can help with their financial affairs, such as bills or student loans.
Without these documents, parents must file an action to be appointed guardian of their child in probate court to make medical decisions or gain access to medical records. Probate court actions cost money, even without an attorney. Needing to go to probate court can also cause significant delays at a time when every second may count for your child. It would be a safe bet to say that any parent who has ever been in this position would have preferred to have a patient advocate designation at the ready, prepared before a time of crisis. Likewise, the durable power of attorney can save you from being appointed conservator through a probate court proceeding if you need to handle your child’s financial affairs.
We recommend that every adult have these important documents in place. Whether your young adult child is off to college or turning 18 while in high school, proper planning can protect your child and save you from a probate proceeding during a time of crisis.
If you have questions or would like more information about these important documents, please contact your primary Varnum attorney or any member of the Estate Planning Practice Team.
This advisory was originally published on August 27, 2019, and republished on August 29, 2022.
