Does Your Teenager Have a Medical Power of Attorney? Tips from a San Jose Area Estate Planning Attorney
Posted by Janet Brewer on Mon, Aug 02, 2010 @ 11:15 AM
Parents think that they always have the right to receive information about their children, even after they turn eighteen. Unfortunately, the law says otherwise.
Once a child reaches age 18, s/he is considered an adult. In the context of medical care and access to medical records, this means that a parent has no say and no rights - not even the right to have the doctor tell them what is wrong with their child.
The good news is that there is a way to ensure that you can make important medical decisions for your child in the event s/he is unable to do so.
What is a Medical Power of Attorney?
A medical power of attorney, known as a durable power of attorney for healthcare or an advance health care directive in some states, allows a person to nominate someone to make medical decisions in the event he becomes so ill or incapacitated that he cannot make decisions for himself.
Once a child reaches 18, regardless of whether he is still living at home or is on his own, he should have a medical power of attorney which names a trusted person to oversee his medical care and make decisions for him.
In most instances, it’s best that the child name one or both parents as attorney-in-fact (called a "health care proxy", a "health care agent", or a "health care surrogate" in some states).
But it may be advisable for a child to name another close relative or friend, too. The point is to ensure that in the event of a medical emergency a trusted person has the authority to work and consult with the doctors and other health care professionals to ensure that the child gets the appropriate medical care in accordance with his or her wishes and personal beliefs.
It’s also important that your child express his or her specific wishes for the medical treatment in the event of terminal illness or major injury regarding:
- Use of life saving or heroic measures; and
- Provision of nutrition and hydration
What Happens if My Child Does Not Have a Medical Power of Attorney?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) prohibits hospitals and health care professionals from releasing medical information to third parties without the patient's consent. This includes the patient's parents if s/he is 18 or older. This means that if your child is seriously injured or is stricken with a serious illness, the doctors will be unable to discuss his or her medical condition with you, unless you have a medical power of attorney.
Moreover, in most states you will have no authority to direct the medical care and treatment your child receives.
What about Financial Decisions?
Your child should also sign a durable power of attorney for financial decisions. This is especially important if your child has moved away from home and is no longer fully dependent on you for his or her support. A durable power of attorney for financial decisions gives you the authority to access your child's bank accounts so you can pay your child’s bills and handle other financial matters which may arise while your child is incapacitated.
Should My Child Sign an Anatomical Gift Declaration?
Many states allow people to designate whether they wish to be an organ donor on their driver’s license. Even if you live in one of these states, it’s advisable to have your child sign an anatomical gift declaration. By signing an anatomical gift declaration, your child will be able to specify which organs he or she wishes to donate and which ones he or she doesn’t wish to donate.
Getting Legal Help
As unpleasant as it may be to think about the possibility of your child being seriously injured or becoming gravely ill, it’s a much worse thought to be unable to get information about your child’s condition or to make important medical decisions for your child in an emergency situation. The best way to avoid being shut out of your child’s medical care is to have him or her sign a medical power of attorney along with the other documents discussed in this article. A qualified estate planning attorney can answer all your questions about these documents and can draft them for your child.
Get started >>
All the best,
