As published in Alison's monthly Ask An Attorney column in New York Parenting
by Alison Arden Besunder, Esq.
Q: My 17-year-old daughter is off to college this fall, and will turn 18 in December. I want to make sure that I am the one to make decisions for her if something happens, and also to make sure I have access to her health information. Can she sign a power of attorney and healthcare proxy? Can I download one online and have her sign it? Is there a norm these days for parent authorization to receive health info?
A: It’s difficult sending the kids off into the world without worrying about the myriad challenges they will encounter. After purchasing everything one needs for dorm life, another concern is how you will continue to make medical and legal decisions for them while they are away.
Most states place the age of majority at 18. This means that until your child turns 18, he or she is most likely not legally competent to sign a healthcare proxy or power of attorney (or make a Last Will and Testament).
When she turns 18, however, the situation changes. At that point, you will no longer be legally able to access your child’s healthcare information or speak with her doctors, which are subject to Health Insurance Portability and Accountability Act (commonly called HIPAA) privacy laws that restrict the dissemination or disclosure of a patient’s privileged medical information absent consent. You might be paying the bills — and even paying for her health insurance — but at that point, you cannot get information without her consent. This can be particularly unsettling in a crisis situation.
The way to resolve this is to have your teenager sign a HIPAA release once she turns 18. The release will authorize disclosure of your child’s healthcare information directly to you if you call the healthcare provider. You can keep a copy or ask your child to furnish a copy to her doctor and the college health center. If your child is uncertain about granting you blanket access to all health information (and assuming you are reluctant to use an “I pay the bills, I get the information” strategy), the release can be tailored to exclude certain types of information (sex, drugs, and alcohol, for example), except in dire situations.
Next, have your child execute a healthcare proxy. If your 18-year-old is in an accident and cannot communicate medical decisions to her doctor (or the doctor in the hospital), in the absence of a healthcare proxy in place, a parent might need to go to court to obtain the authority to make those decisions. In New York, since 2010, the Family Health Care Decisions Act allows a patient’s family member to make healthcare decisions if the patient lacks decisional capacity and did not execute a healthcare proxy. However, this statute only bestows such authority in a hospital or institutional setting, not a physician’s office. Other states may not have a similar statute.
Even though you have raised your child to go out into the world, you still remain a source of financial and even medical support, and are the likely “in case of emergency” contact. It is important to get the requisite authority to make those decisions in advance before a crisis occurs. And, if you do not have these advance directives for yourself, it is a good opportunity to get those documents finalized as well for both parent and child.
Last, but not least, is a power of attorney. A power of attorney (sometimes referred to as a durable power of attorney) appoints an individual (or multiple individuals) to act as agents on a person’s behalf with regard to financial or legal (non-health) matters. The scope of the authority is determined by the individual signing the power of attorney and granting the authority, and can be as broad or as narrow as the person wishes.
If your child is fiercely independent and resisting the idea of granting such control to you, despite continued dependence on your financial support, it can help to propose a trusted aunt, uncle, cousin, older sibling, or even responsible friend of the family to serve in one of these roles or as a co-agent with the parent.
In the context of older people, they tend to be reluctant to grant someone such control over their affairs with a power of attorney, as doing so is, implicitly, a recognition of their own actual or potential cognitive decline. With teenagers off to college, it presents different concerns about the parent continuing to have control over them just as they are on the brink of complete independence. Teens may also be concerned that the power of attorney can be used by the parent to access their grades, which the college will not usually disclose absent the grant of authority, regardless of who pays the bills. Be prepared to address this and other concerns with your child when discussing the topic with them.
So, as you plan to celebrate your teen’s 18th birthday, have a plan to discuss these topics and documents at some point after you bring out the cake, and rest easier that you will still be able to be there for her in a time of crisis.