Imagine this scenario: you are the parent of a college student. Your telephone rings one evening and on the other end is your child’s roommate telling you that your child was just rushed to the emergency room. You call the hospital for information and identify yourself as the parent. The hospital advises you that because your child is 18, they cannot provide you with any information. It is at that moment that you realize that you have as much of a chance of getting health care information about a stranger as you do your own child.
Parents do not realize that even though they continue to pay for their child’s medical insurance, tuition, books and housing, they do not automatically have the legal right to the child’s medical information. This is, in part, because of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
One of the primary goals of HIPAA is to protect the confidentiality and security of health care information. While age 18 is the age when minors cease to be considered children and the control and legal responsibilities of their parents is terminated, many parents are unaware that they lose rights at that point.
Tragic stories have dominated the headlines over the past few years. Heart wrenching reports about students who have suffered alcohol poisoning or drug overdoses which have resulted in brain damage and/or coma have become commonplace. The parents of these students, who are no longer minors, have no legal authority to make decisions regarding their own child’s care. In such cases, the parents must bring a court proceeding to become their child’s legal guardian in order to make health care decisions. These kinds of proceedings generally cost thousands of dollars and can take a great deal of time—time the child does not have.
To protect college-age children, it is imperative that they execute a health care proxy naming a parent as their agent. Parents will then be contacted immediately if a child is seriously injured and they will have the authority to communicate with medical professionals and make health care decisions for that child. In addition, if drafted correctly, the health care proxy will give parents access to their child’s medical records, allowing them to make informed decisions.
Although it may seem counter-intuitive to bring a college age child to an elder law attorney, their experience with drafting health care proxies and ensuring appropriate language is in place is unmatched. A health care proxy is not worth the paper it is written on if it is not drafted and executed properly.
Consider this example: the father of a 19-year-old girl decides to go on the internet and download a health care proxy for her, as they recently learned the importance of having one when another family member became sick. His daughter fills out and signs the document naming her father as her agent. Months later, this woman is involved in a terrible motor vehicle accident and she suffers a traumatic brain injury.
Decisions regarding artificial nutrition and hydration need to be made on her behalf so her father produces the health care proxy—only to be advised that the generic, on-line proxy does not give him that authority. His daughter’s current condition makes it impossible for her to sign a new document so her father has no choice but to bring a guardianship proceeding in Supreme Court.
Elder law practitioners come up against many issues like this that are specific to our area of practice. These situations are real and they happen every day. Elder Law attorneys can provide the legal advice necessary to handle all such cases properly from the beginning, saving the family time, money and unnecessary angst.
Although this is the last thing a family wants to think about when preparing a child for college or helping a young person after college, the risk is undeniable. According to the Center for Disease Control and Prevention (CDC) accidents are the leading cause of death for individuals age 18-24. In addition, hundreds of thousands of young adults are hospitalized each year with catastrophic injuries. The question is: Do you want to be the first phone call or the last? A properly executed health care proxy offers one less worry for parents.
Melissa Negrin-Wiener, Esq. is an elder law attorney and partner with the elder law and estate planning Genser Dubow Genser & Cona based in Melville.