Congratulations! As your son or daughter graduates from high school, you deserve to sit back and savor the moment. It’s not only a big achievement for them, but it’s also a turning point in your lives.
That turning point raises a legal issue you’ll need to address before your graduates head off to college. No matter how responsible they are, you don’t want them – or you – to be flying without a safety net in the event of an emergency. As a parent, you need for them to have an advance medical directive with an accompanying HIPAA release and a financial power of attorney once they hit 18.
Why? Because the law considers your sons and daughters to be legal adults at age 18, even though you might look at them and still see toddlers who somehow jumped from crayons to college overnight.
What the law says is, once children turn 18, the parents no longer have control over their financial or healthcare decisions. That’s right: The youngsters who keep asking for 20 bucks for gas can sign their own contracts, borrow money — whatever. 18-year-olds also get to make their own healthcare decisions. If they don’t want you involved, they can do their own thing.
But as scary as all that is, here’s an even scarier scenario. Your kid is driving back to campus after a spring-break visit and gets into an accident. He’s unconscious, in the hospital, with serious injuries. He can’t sign or speak for himself. One of his friends calls you and says you better come quick.
What you’ll discover when you get to that hospital, though, is that you don’t even have the legal right to speak with your son’s doctor. You have no legal right to get information about his condition. And you have no legal authority to make any healthcare decisions for him — unless you have the right documents with you.
That’s why it’s so important your sons and daughters execute a general durable power of attorney and an advance medical directive with a HIPAA release when they turn 18. These documents empower you to act as a surrogate decision-maker while they’re away at college — or even living at home but suddenly lying in a hospital bed.
These documents help you in three important ways.
- Information Access: Federal privacy laws and rules protect patients from the unauthorized release of information by healthcare providers. The Health Insurance Portability and Accountability Act of 1996 — better known as HIPAA — prevents that ER doctor from telling you anything about your unconscious son. However, a HIPAA release authorizes the doctor to communicate with you about your son’s condition. So, you can participate with the doctor in his medical decision making.
- Decision-Making Guidance: An advance medical directive is not limited to end-of-life decisions, although it’s obviously extremely helpful for such tragic scenarios. The advance medical directive appoints an agent — probably you — to make healthcare decisions for your son or daughter if he or she can’t do so.
- Authority: The general durable power of attorney empowers you, acting as an agent, to assist your child – who the law considers an adult — with financial matters. Whether it’s making arrangements to get the bills paid for that hospital visit, or non-medical financial matters like handling tuition or getting scholarship forms filled out and submitted correctly, you, as an agent, could access your son’s or daughter’s bank and credit card accounts to help manage their affairs.
These documents are not only vital for you to have in an emergency, but they also give you and your 18-year-olds a safety net. If they’re pretty mature and responsible, they’ll likely appreciate the security of knowing you have their back, so to speak. And if they have a history of poor decision making, the documents enable you to step in and save them from themselves — or work with them in righting their mistakes.
At the very least, visiting an attorney and having these documents prepared provides you and your offspring an opportunity to talk about some important facts of life and the responsibilities that accompany the milestone of turning 18. An added bonus: This will open your kids’ eyes to the conversation they’ll someday need to have with you when it’s time to think about serious estate planning and making arrangements for your own senior years.
ABOUT BRIAN HUNDERTMARK
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Brian J. Hundertmark has more than 30 years of experience representing the needs of his clients. They rely on him for their estate planning, business succession, and asset protection needs. He designs personalized estate plans to help minimize the burden of gift and estate taxes while protecting assets from potential creditors. Brian makes estate planning as timely and painless as possible.
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