May 23, 2015

Documents your 18-year-old needs

Has your child turned 18? Then he's an adult, says the law - even if he's still on your insurance plan, even if you're paying his tuition, even if he's living in your house and you're doing his laundry. From a legal perspective, your parental rights have terminated. That means that if he experiences a medical emergency, you may not be able to help or even get information about his condition - unless he has given you the authority to do so.

Why? Privacy laws. Two come into play here: The first is HIPAA, the Health Insurance Portability and Accountability Act, which limits those to whom health care providers can release data. The second is FERPA, the Family Educational Rights and Privacy Act, which restricts the information a school can release about an adult student.

Adults are entitled to their privacy, of course. And nobody wants to discourage an 18-year old from seeing a doctor or visiting the college infirmary because he's afraid mom and dad will find out about his personal life. On the other hand, most parents want to be there in the event of a child's health emergency, without having to go to court to get a guardianship over their child. And in my experience, once a young adult understands how the law works and its ramifications, he/she too wants the parent to be able to assist in the event of emergency.

There are numerous examples of well-intentioned privacy rules gone awry. Consider one incident reported by Consumer Reports in its 8/26/14 article, "Will You Be Able to Help Your Child in A Medical Emergency? Sheri Warsh, an Illinois resident and mother of a University of Michigan student, learned that her son had been rushed to the hospital when her son's roommate contacted her. (The hospital did not contact her.) In a panic, Warsh phoned the hospital to find out what was going on, but was rebuffed by the person who took her call. "She told me I had no right to talk to the doctor," Warsh says. Can you imagine how you would feel if this was your child? Fortunately, her son recovered.
Another instance is reported by Deborah Jacobs in a Wall Street Journal article of 8/15/14. Alex Franc, a Penn State sophomore, had been vacationing in Mexico during a school break. After returning to the U.S. he fell ill and was admitted to the school infirmary. His father rushed to the school to see him, but the doctors refused to talk with him, citing privacy concerns. Alex was "out of it" at that point and unable to give consent even if he wanted to.

With regard to mental health issues, the risks inherent in our privacy laws have come under intense scrutiny in the wake of recent violent incidents, from Sandy Hook to Virginia Tech to Aurora. In an attempt to recalibrate the balance between protecting privacy and protecting the public, U.S. Representative Tim Murphy (R-Pennsylvania), a clinical psychologist and co-chair of the Congressional Mental Health Caucus, has introduced the Helping Families in Mental Health Crisis Act. One section of the bill would give mental health professionals more leeway to release information about severely mentally ill adults under certain circumstances.  

So what to do when your child turns 18? First, he/she should sign a health care power of attorney that gives you the authority to get information and make medical decisions for him if he cannot do so. This may be easier said than done, of course: As a father myself, I realize some 18-year- olds will not take kindly to this idea, viewing it as an intrusion on their adulthood. If this is your child's attitude, he may be more receptive to making someone other than you his agent. It could be a sibling, or perhaps an aunt or uncle. Or he might consider meeting, independently, with a good estate planning attorney who can explain the legal facts of life to him. Lastly, there's always the old-fashioned carrot-and-stick approach. No health care power of attorney? Fine - then no car.

Age 18 is also a good time for a child to create a property power of attorney, so that someone else - probably mom or dad - can manage his financial life if he is unable to do so. Most young adults have little in the way of assets to manage, but there are still occasions when he may need someone to act on his behalf. Example: Your child is out of the country and needs money wired to him out of his account; or wants you to handle an insurance claim or hire a lawyer to handle a lawsuit in the event of an accident. 

We all remember the Terri Schiavo case. All of the litigation involved fighting over who should be able to serve as her court-appointed guardian. That would have been a non-issue if she had executed a health care power of attorney and a durable power of attorney.

Many young adults feel that they are invulnerable. We know better. Even newly minted adults need someone watching their backs in the event of a medical emergency. If your child has the proper estate planning documents, you can be there for him.

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