Estate Planning & Elder Law Blog

If your child gets sick or is in an accident and ends up being hospitalized, due to privacy laws known as the Health Insurance Portability and Accountability Act (HIPAA), you would not have any rights to get any information from the hospital regarding your child's condition, nor would you have the ability to access his or her medical records or intercede on your child's behalf regarding his or her medical treatment and care. Further, if your child is unable to communicate with his or her doctors, in order for you to be able to intercede on your child's behalf, you would have to petition the probate court to be appointed your child's guardian. This is bad enough if your child is still living at home; it can become a nightmare if your child is attending college away from home.

The good news is that there is a relatively easy fix to this problem:

Durable Power of Attorney for Health Care. You can have your child sign a Durable Power of Attorney for Health Care, naming you as your child's patient advocate. As patient advocate, you will have the authority to make personal and medical care decisions for your child if he or she suffers a disability, rendering him or her unable to act.

HIPAA Authorization. Because a Durable Power of Attorney for Health Care does not take effect until your child is unable to make his or her own health care decisions, you should also have your child sign a HIPAA Authorization which permits you to discuss your child's medical condition with his or her doctors and obtain your child's medical records and medical information regardless of whether your child is incapacitated. In other words, you will be allowed to participate in your child’s health care even if he or she isn’t incapacitated.

In addition to a Durable Power of Attorney for Health Care and a HIPAA Authorization, you should also have your child sign a Durable Power of Attorney for Financial Matters, naming you as your child's agent so that you can manage your child's financial affairs, including but not limited to banking and bill paying, if your child is sick or injured, or is unable to act for any reason.

Not Just For Children:

In addition to having your 18-year old child sign a Durable Power of Attorney for Health Care, a HIPAA Authorization and a Durable Power of Attorney for Financial Matters, you should also execute these documents for yourself if you haven’t already done so. They are critically important to have and should be an integral part of every person’s estate plan.

For more information, please contact Attorney J. David at 616.726.2243 or jdavid@fosterswift.com.