Our children are precious to us, and they grow up so fast. In the blink of an eye, it seems, they go from toddlers to college students. And in the eyes of the state, when they turn 18 our children are legally no longer children at all – they’re adults. That means they become responsible for themselves overnight, but we parents know that our responsibility for our kids’ wellbeing never ends. Parenting is a lifelong endeavor.
So say your teenager goes off to college and finds themselves in a horrible predicament. Maybe through no fault of their own, they’re involved in an accident that leaves them incapacitated, unable to make health decisions on their own. Your kneejerk reaction would probably be to race to their side and step in for them, discuss options with doctors, make medical decisions, or perhaps even handle their financial affairs during their period of incapacity. Not so fast.
What may seem like an injustice is a legal reality. When your adult child becomes unable to care for themselves, a parent can’t simply come to their rescue and take over. You see, because they are adults, you won’t have access to your child’s medical or financial records, doctors may not discuss details about their care with you, and you may end up feeling helpless, shut out of your child’s life, unable to help in any way. Yes, this is a real scenario that plays out often when proper planning hasn’t occurred. But the good news is that there is a simple, inexpensive solution to this problem that will prove priceless in an unforeseen emergency.
In Texas, before their children reach the age of 18, parents not only have wide-reaching authority to act in the best interests of their children, it is their obligation. At age 18 and older, however, they have almost no authority at all over their children. An 18-year old can enter into contracts on their own, vote in elections, serve on a jury, marry without consent, and even make their own will. Similarly, they become subject to certain protections under law, including those afforded by the Health Insurance Portability and Accountability Act, known as HIPAA.
Among other things, HIPAA says that no one can have access to your medical information without your consent. So a parent can’t demand that a doctor discuss their child’s medical details with them unless the adult child has given their consent. If your child is unable to communicate on their own, and prior written consent hasn’t been given, the parent is out of luck. The same privacy protections apply to fiscal information held by your adult child’s bank or other financial institution.
Just like any proactive older adult, a young adult should have a set of ancillary documents – if not a will, as well – prepared by an attorney in the event of an emergency. These ancillary documents include a durable power of attorney, power of attorney for healthcare, medical directive, and HIPAA authorization.
Durable power of attorney – In this document, your adult child will name another person (called an “agent”) to act on their behalf. It takes effect immediately and remains effective if they become incapacitated and are unable to make decisions on their own. Typically, the agent would be a parent, but they can choose any trusted person, and the powers they grant their agent can be broad or limited, including handling business and financial affairs, purchasing and selling property, and many other decisions.
Durable power of attorney for healthcare – Also known as a “medical power of attorney” or “healthcare proxy,” this document enables a parent or other trusted person to make decisions specifically related to the adult child’s medical care if they are unable to do so. The person chosen for this role should have a full understanding of the medical situation, the adult child’s wishes with respect to their health and treatment, and be able to make difficult decisions.
Medical directive – Also known as a “living will,” this document is a statement of the adult child’s wishes for the kind of life-sustaining medical intervention they want or don’t want if they are unable to communicate and have become terminally ill or suffering from an irreversible condition, as determined by their physician. No agent is appointed, so no one else has authority to act on their behalf in this situation. A living will is the only way to convey in advance their personal preferences for life support measures, life-saving procedures, and long-term care.
HIPAA authorization – As mentioned earlier, this document allows access to the adult child’s medical records when they are incapacitated. This authorization, coupled with the medical power of attorney, is the foundation for ensuring the adult child’s best interests are considered when they are unable to make healthcare decisions on their own.
What happens without these ancillary documents
Without these documents, a parent will be effectively shut out of making medical decisions and handling financial affairs in an emergency situation. Pleading with a doctor or bank official is unlikely to yield favorable results. The only real alternative a parent would have would be to go to court to have themselves appointed their adult child’s guardian – or the court could appoint someone else, if the parent does not qualify. Then the guardian would have the authority to act on behalf of the adult child. But the process is not timely and can be expensive.
It is important to have these documents in place, even if you are young and healthy. We don’t often relate the thought of becoming unexpectedly incapacitated to the younger generation, but the consequences are every bit as relevant to an 18-year old as they are to a senior citizen. Loved ones should be in a position to help when it counts the most. Encourage your adult children to get these documents in place sooner than later. Keep the originals in a safe place and make sure your adult child has a copy to take with them. Lastly, scan and save a copy so they’re readily available to email a healthcare provider or financial institution in an emergency. Then take comfort that you’ve fulfilled your parental duties yet again. Remember what your own parents said about an ounce of prevention…