A Frightening Omission to the Estate Plan Package

Everyone is supposed to have an estate plan, right? And today’s “package” typically includes the power of attorney we have discussed a lot and a medical power we have discussed very little. The medical power is the one that let’s someone decide life & death medical decisions in situations where you can’t communicate. And, of course, the will.

It’s not quite clear when you need these documents.  My guess is that estate lawyers would say age 40 is about the time to start thinking about these things. But, a recent article brought to my attention the fact that the person most in need of a medical power may be your recent high school graduate.

Huh? Hear me out. Your 18 year old grad is currently at the shore for the justly maligned “senior week.” Or he/she is on campus for orientation or attending college. There is suddenly a medical emergency and you get a call from a cop or a physician that your child is hospitalized. The good news is that the kid had your contact info in his/her wallet so you at least got the call. But, there are medical decisions which need to be made and your child is in no condition to discuss.

Well, you’re the parent so naturally it’s your call to make, right? Not so fast. Your child is 18; an adult or sui juris as the Latins would put it. The medical facility or physician is bound by the Health Insurance Portable Affordability and Accountability Act (HIPAA) and it says that the medical information of everyone is private. Moreover, that’s only access to the facts. You have no automatic powers to make any medical decision for another adult absent express authority to do so.

The case study I read involved a young adult seriously injured in a faraway state while enrolled in college. The parents were notified and summoned to come immediately but their authority to decide form and place of treatment was completely unclear. In fact, as this attached article illustrates, even the powers related to the medical privacy of children under 18 are murky. How Does the HIPAA Privacy Rule Apply to Minors? – The HIPAA Guide  The powers parents can exercise over the needs of a child who has attained 18 are essentially, none.

There are other complications as well. HIPAA is a federal law applicable in all 50 states. But individual states also have their own medical authorization laws which should be in harmony with HIPAA but often are not. The parents in the case study found that the state had appointed a medical guardian ad litem under that state’s law. Hospitals and medical providers may want to handle things differently, but their legal advisers are telling them compliance with a parent’s wishes without written authority to act could invite litigation. Realize as well that parents often don’t always agree about things like whether the child should be medevacked back home or treated in the hospital where the child was first brought. One thing that lawyers and physicians both agree on is that they don’t want to be in the middle of a squabble over treatment while the patient is in need of immediate care.

Here is one solution. Free Download: HIPAA Release Form. Note well that California and Texas have different rules. But the form only allows you to obtain the medical information about your child. Truth is that you probably will want to explore a full medical power of attorney so that you can direct medical care while the child cannot. Because the chance you will need such a document is remote it might make sense to explore the various such powers that are available online rather than engage an attorney to draft an individual document. And, you do need to discuss this with your kid since that’s where the power will come from.

The conclusion is it isn’t just those of us with graying hair who need “estate” planning. Our kids do to.