As parents, we are very involved in the lives of our children and are instrumental in many decisions they make with regard to extracurricular activities, school choices, health care treatments, etc. We assume that although they are growing up and moving toward greater independence from us that we will still be somewhat involved in the important decisions they will need to make since they will likely continue to be at least partially, if not fully, financially dependent on us throughout their college years.
However, once your child turns 18, as a parent you lose the legal authority to make decisions for them since they are now considered an adult in the eyes of the law. This includes the ability to access their medical information and the ability to represent them in certain situations or manage their financial affairs. If no delegation of a decision maker is made, then you, as a parent, will have no authority to act on their behalf in the event they become incapacitated.
Imagine the following scenario: Your 18-year old son or daughter is away at college in a neighboring state. He/She is in an accident and sustains injury to his/her spine and is unconscious as a result of the accident. His/her roommate notifies you and you quickly call the hospital to get more information about your son/daughter. The hospital is not cooperative and gives you very little information as to your son/daughter’s condition. In addition, since he/she is still unconscious it is not clear as to who will make decisions as to his/her treatment. If the proper documents had been in place granting you the authority to act on his/her behalf, then this situation would have been very different and a lot less frustrating for you as a parent since you would have been able to access his/her records and give instructions as to his/her treatment.
It is important to have the proper tools in place to protect your rights as the parent of the adult child and allow continued access to their medical records. The following documents will allow you to continue to aid your adult child with regard to medical and financial information and decisions:
1. Advance Care Directive for Health Care: This document is an important tool to have in the event of some type of injury or health crisis. This document will allow you to act on your adult child’s behalf with regard to medical decisions in the event that they are incapacitated and cannot make such decisions for themselves. There are also provisions within this document that allow your adult child to express their wishes with regard to end of life decisions and organ donation. This document will also include a HIPAA waiver to allow you, as their health care representative, to have access to their medical records and health information so that you can access all of the information necessary to make an informed decision on their behalf. In addition, it is also recommended that you consider an Advance Directive for Mental Health Care in the event that your adult child is under a mental disability and needs a representative for mental health care decisions. Since these directives are governed by different statute sections and contain very specific directives, it is best to have separate documents in place instead of combining them into one document. Both of these documents can be revoked at any time, for any reason, so long as the adult child is not under a disability at which point the document(s) would become irrevocable until they are no longer under such disability.
2. Durable Power of Attorney: This document allows you to act on your adult child’s behalf regarding financial or legal matters. This document can be drafted to become effective immediately upon signing. This document would allow you to act on behalf of the adult child without them losing any ability to act on their own. It is useful if your adult child is traveling or overwhelmed by their workload at school or in the event they are incapacitated in some way. You would have the ability to pay their bills or access or transfer funds in their behalf, apply for loans, etc. You would act as their Attorney-In-Fact in the aforementioned situations. This document can be revoked at any time, for any reason, so long as the adult child is not under a disability at which point the document would become irrevocable until they are no longer under such disability.
3. HIPAA Authorization Form: This form allows the named representative to access your adult child’s health records and speak to doctors about your adult child’s health. The Advance Directives for Health and Mental Health Care both contain HIPAA provisions which allow the adult child’s representative to speak with doctors and access health records when the adult child is under a disability but will not allow you to access such records if they are still capable of making their own decisions. You should speak with your adult child to decide if they would like to execute this authorization so that you will have access to their health records even if they are not under a disability. You can place a time limit on this authorization.
4. FERPA Release: This form allows the representative to speak with the school about your adult child’s grades and other information related to their school performance. You can ask the college directly for this form since each usually have their own form that they use for this purpose.
It is important that you discuss the aforementioned issues with your adult child prior to their leaving for college or upon turning 18 so that you can both be comforted by the fact that you have the proper documents in place to support and protect them during their college or early adult years and in the event of an emergency.
If you have any questions regarding the aforementioned documents, feel free to contact Erin M. Nadeau, Esq. at Jardim, Meisner & Susser, P.C.
—Erin M. Nadeau, Esq.