A Parent’s Worst Nightmare: Why you need a health care power of attorney for your child when he or she turns 18

Every parent’s worst nightmare: The phone rings in the middle of the night jarring you out of a sound sleep. You tentatively answer the phone. A strange voice tells you that your adult child has been in an accident and is in a coma. You race to the hospital demanding answers. Instead of medical answers, you are asked “Does your child have a medical power of attorney?”

You say no. You are told: “I’m sorry then. We cannot allow you access to your child’s medical records. We cannot allow you to have a say in your child’s care.” Meanwhile you are standing there in shock. You keep asking yourself if you are dreaming or if this is a nightmare. Unfortunately, this is not a dream.

Could this really happen? Actually, it is possible unfortunately. Once your child turns eighteen, you no longer have the authority to make healthcare or financial decisions for your child.

But I’m paying my child’s insurance! How can I not have access to his or her medical records? Well, under the Health Insurance Portability and Accountability Act (HIPAA), medical records are protected. When your child turns eighteen and becomes an adult, you legally no longer have access to your child’s medical information. This is true even if your child is covered by your health insurance.

Once your child turns eighteen, you, as the parent, may no longer have the right to make financial or medical decisions on behalf of your child even if your child becomes incapable of making those decisions for his or her self. Without powers of attorney in place, you may need court approval to act for your child. Obtaining court approval can take time which you may not have in a life or death situation.

So, while your son or daughter is headed to college and you are both thinking about roommates, tuition and classes, you may want to talk about having your child sign some legal documents. Ask your child to sign a durable power of attorney and a health care power of attorney and living will appointing you as his or her agent.

You will make financial decisions for your incapacitate child with a Durable Power of Attorney. Likewise, you will make health care decision for your your incapacitated child with a Health Care Power of Attorney.

So, talk to your child about the importance of executing these documents when he or she turns eighteen. Then, pick up that phone and schedule an appointment with an estate planning attorney to get those documents in place. And while you are at it, get your own documents prepared if you do not have a durable power of attorney or Health Care Power of Attorney in place. As I always tell my clients, while I hope that you never need these documents, you will be glad you have them if you ever do.

If you would like more information on Durable Powers of Attorney, Health Care Powers of Attorney or Living Wills, please contact us at info@nclegalcounsel.com or www.nclegalcounsel.com. If you would like our assistance in preparing those documents for you or your child, please contact us at (919) 535-9131.