Florida Elder Law & Estate Planning Blog
When You Kid Turns 18, He Needs These Legal Documents
August 30, 2020
Your child’s 18th birthday may seem like just another birthday on the road to adulthood. But legally speaking, it represents a massive change for him, and for you. Those 18 candles on the birthday cake mean you, the parent, are no longer automatically entitled to information from your child’s health care providers. Your right to make health care decisions for him vanishes, too.
Like every adult, at age 18 your child’s medical status enjoys the protection of the Health Insurance Portability and Accountability Act (HIPAA). HIPAA is the landmark 1996 legislation that protects the privacy of adults’ medical records. If your child does not take affirmative steps to waive those newfound privacy rights and to grant you the ability to help him and confer with his health care providers, unpleasant situations could arise. Consider the following nightmarish scenarios that could unfold:
- Your daughter attends college in another state. You phone her dormitory and her roommate tells you she was admitted to the local hospital’s COVID unit, where she is in isolation. You call the hospital but the nurses on the floor won’t release any information to you.
- Your son lives with you and is gravely injured while driving to work one morning. He is unable to communicate, and time-sensitive medical decisions need to be made regarding his treatment. You repeatedly call his physicians but you don’t have the authority to make decisions for him.
- Your son took a year off college and had a serious accident while backpacking in Alaska. He is being treated at a small rural hospital and has been unconscious for several days. You would like to have him transferred to a larger and better-equipped facility but you are told you have no authority to do that.
Documents Your Child Needs
In our experience, once most young adults understand that situations like the above can occur, they are willing to give their parents the ability to assist them if necessary. However, there may be limits which a parent must respect. For example, your daughter may be open to giving you access to her medical information and physicians should she be hospitalized, but may resist giving you access to other types of information. We can create documents that are specific to your child’s desires.
The two essential documents your child should have are:
Health Care Surrogate:
With this document, your child grants you the ability to make his medical decisions in the event he is incapacitated. Without it, his medical providers may make decisions that you would not agree with, and that you may feel even your child would not agree with. Note that “incapacity” need not be permanent. It could include, for example, when your child is anesthetized during surgery and a decision needs to be made in real time based on the findings of the surgery. The Health Care Surrogate should include a HIPAA release, or a separate HIPAA release should be created.
Your child’s doctors should have copies of this document. If your child is going off to school, it’s a good idea to furnish the school infirmary with it, too.
Durable Power of Attorney:
This is what will allow you to handle your child’s financial affairs should it become necessary. For example, if he is hospitalized due to COVID, you could access his accounts, pay his rent, pay the premiums on his health insurance, keep up with student loans, etc. (Note that in Florida, there is no such thing as a “springing” power of attorney – a durable power of attorney takes effect immediately.)
As with the Health Care Surrogate, the Durable Power of Attorney should be provided to the financial institution(s) your child deals with. Request that the bank or other institution review it and confirm that it will be honored if ever needed.
Call our office at (561) 625-1100 to arrange for us to create these documents for your 18+ child.