Q. My daughter, Becca, is graduating from high school next week and attending college in Richmond in the fall. We couldn’t be more proud of all of her accomplishments. We are thrilled that she is just a little over two hours away, and that she can bring a car to school, so she can come home and visit (even if it’s just to bring us laundry) on weekends sometimes.
We threw a party for her last weekend, since she also recently turned 18. Aunt Olivia (we call her “Overcautious Olivia”) started bringing up concerns at the party. She had a scary experience several years ago when one of her own children got into a car accident at school, and she couldn’t find out anything from the medical providers due to HIPAA laws. She had to drive all the way to Blacksburg to see her son, who ended up pulling through, thank goodness. She suggested that before Becca goes away to college, we sit down with you and put together incapacity planning documents.
I don’t see how what she is saying can be true. I never heard of someone so young needing such documents in place. Can you please clarify if she is correct or just being overcautious, due to one bad experience that she had? Thanks!
A. Congratulations on your daughter’s high school graduation and I hope she had a happy 18th birthday!
Moms and dads who send their children off to college typically still think of themselves as protectors and advisers, even after their children become legal adults. Parents, or soon-to-be college students, often don’t consider the real-world implications of that milestone birthday.
As much as you didn’t want to think about these things at your daughter’s happy occasion, you aunt is correct in the importance of them. Parents and their young-adult children need to think about the unthinkable in advance, because under the federal Health Information Portability and Accountability Act (HIPAA), your 18-year old teen’s health records are between her and her health care provider. Three vital legal documents — an Advance Medical Directive, a Financial Power of Attorney, and a HIPAA authorization — will help facilitate the involvement of a parent or other trusted adult in a medical emergency.
1. Advanced Medical Directive
An Advance Medical Directive (which includes a Medical Power of Attorney) would authorize you to make decisions with respect to your daughter’s medical care in the event that she is physically or mentally unable to do so, as certified by two physicians.
This document would allow her to name an agent (presumably you or you and her father) to receive vital healthcare information and make healthcare decisions for her in the event that she is unable to do so, and permits her to specify certain treatment preferences regarding such care. This document only becomes effective when your daughter cannot (or is unwilling) to make health decisions for himself or herself.
For added peace of mind, we register the Advance Medical Directives of our clients with DocuBank. We’ve heard too many horror stories, and we want to ensure that doctors and loved ones can immediately obtain our client’s Advance Medical Directive so that our clients can get the best care.
2. General Financial Power of Attorney
A General Power of Attorney is the most important legal document that a person can have and is an essential part of every Incapacity Plan and Estate Plan. A General Financial Power of Attorney (always “durable” when used in connection with incapacity planning and estate planning) authorizes an agent, sometimes called “Attorney in Fact,” to act on your daughter’s behalf and sign her name to financial and/or legal documents, including health insurance claim forms, forms required by her college, etc. The power may become effective immediately or it may be “springing” – which means it only becomes effective upon the occurrence of a later event (e.g., a student’s incapacity as certified by two physicians).
3. HIPAA authorization
If your daughter appoints you or you and/or her father as her health care agent(s), the most important thing to ensure is that she has also signed a HIPAA Waiver. A HIPAA Waiver allows you to get the same medical information the patient would get – complete access to the patient’s medical records and any information from the doctors, the hospital, or the nursing home that you need about the patient’s health or health care.
Young people who want parents to be involved in a medical emergency, but fear disclosure of sensitive information, need not worry –HIPAA authorization does not have to be all-encompassing. The young adult can stipulate not to disclose information about sex, drugs, mental health, or other details they might want to keep private.
Now is the Time to Update Your Own Estate Plan
When your child was under 18 years old, you could rest assured that, if you were to pass away before your child became an adult, your child would be taken care of by the guardian named in your Will (you do have one, right?).
Now that your child is no longer a minor, it is an ideal time to rethink your estate plan. Why? Because if you pass away, your child will not automatically be sent to live with a guardian. This could be a scary thought, so make sure you have an estate plan in order, and if you do, that it’s up to date!
Incapacity Planning is Important for Everyone
As you can see, the best graduation gift you can get for your daughter (and for yourself) is the peace of mind that comes with an incapacity plan. We here at the Farr Law Firm have strategies in place to help adults of all ages plan for themselves and their loved ones, whether you’re a young-adult, a middle-aged person, or a senior. If you or members of your family have not done Incapacity Planning or Estate Planning, or if you would like to make updates to your existing planning documents, please contact us as soon as possible to make an appointment for an initial consultation:
Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301-519-8041
DC Estate Planning: 202-587-2797
About Evan H Farr, CELA, CAP
