Spring is an exciting time for high school seniors as they finalize college choices and look forward to graduation. For many seniors, these are the last days under their parents’ roof (at least until next summer!). It also means turning (or just having turned) age 18.
As we all know, turning 18 is an important legal milestone. In Minnesota, a person becomes a legal adult on their 18th birthday. This means they can do a whole host of exciting things like vote, smoke, buy fireworks, get a tattoo, make a will, serve on a jury, sign contracts, and be sued! It also means that, as an adult, an 18-year-old no longer has a legal guardian. Which in turn means that as of midnight of their 18th birthday, they have adult privacy rights that include control over health care decisions and their medical records.
Unless your child has granted you access to their records under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or otherwise provided for you being part of medical decisions about their care, they are legally on their own because HIPAA prevents medical providers from releasing any private health information without patient consent. Without authorization, you cannot access your child’s records or be a part of their medical decisions. Imagine finding out your child is in the hospital, but you cannot have access to medical records or make decisions for or with them in the event they cannot or will not.
We at Sanford, Pierson, Thone & Strean recommend planning to protect against unexpected events.
1. Health Care Directive
A Health Care Directive places a trusted adult into your child’s “shoes” for medical decisions. Most Health Care Directives take effect only in the event your child is incapacitated and cannot express their wishes. However, it can also be drafted to take effect immediately even though your child has legal decision-making capacity. The health care agent (you) can give consent, refuse consent, talk to the doctors, choose where the person lives and recuperates, and receive private health information under HIPAA (provided the proper HIPAA language is used in the Health Care Directive).
There are plenty of stories in the news of adult children who have been in an accident, and the parents are surprised to find that they cannot receive medical information about their child because they are not named in a health care directive. Make sure that you do not find yourself in the dark and unable to help your child should the need arise.
2. Power of Attorney
A power of attorney appoints an agent with authority to make financial decisions. Many powers of attorney are immediately effective when the document is signed. As a parent, this means that you would have access from that point on to your child’s financial records. In order to protect the privacy of the adult child, we often recommend a durable power of attorney that springs into effect upon incapacity instead. Either type of power of attorney allows a parent to assist a child in the management of their financial affairs. In the unlikely event of the newly minted adult’s incapacity, a parent nominated as the agent in the power of attorney can step in and pay bills, rent, tuition, or make any other financial decisions necessary to protect the interest of their child.
Without a power of attorney, parents may find it difficult to receive information in the event of a child’s incapacity, and the parent would certainly not be able to apply for insurance or disability benefits, or manage the child’s finances.
3. Digital Data Release
Sanford, Pierson, Thone & Strean also recommends having young adults sign a document authorizing the release of their electronic data in the event of their incapacity or death. Given the extent to which our lives are lived online and on our phone, parents often need to be able to access that adult child’s electronic information – including social media accounts, Internet and computer accounts, cellular phone accounts and the like — in the event of a young adult’s incapacity or death. The news is also filled with stories of parents and loved ones asking Apple and Samsung to unlock their child’s phone and computers after a tragedy, to no avail. Without authorization, those companies are obligated to protect the privacy of such data and not release it.
Except in the eyes of the law, children don’t magically change on their 18th birthdays. While legally they are an adult, they still need all the help and support they did as 17 year olds. By putting into place the right documents – some of which you may want to customize to meet you and your child’s unique goals and wishes – you and your child will have peace of mind as they set forth into adulthood.
And a final point: a health care directive, power of attorney and digital release are not just for your children. These documents are key elements to any thorough estate plan. Does your estate plan include them?