Because we’re so intimately involved with raising our children, it’s tempting to see them as just that — children. We will likely always think of ourselves as our children’s protectors and advisors. I’m pretty sure my parents still feel that way.
However, once children turn 18, in the eyes of the law, they become legal adults. Often, parents don’t consider the real-world implications of that milestone birthday.
When children turn 18, they are legally adults and you, the parent, lose the ability to make decisions on their behalf. Once they turn 18, you lose many of the legal rights you had as a parent when they were younger – even the right to receive their grades or talk to their doctors without their permission.
How You Can Make Medical Decisions for Your Child
It is possible for parents to continue acting as our children’s protectors and advisors. However, in order to do so, your children need to complete a few legal forms: an Advance Health Care Directive, a HIPAA authorization, and a Durable Power of Attorney. It is important for parents and their children to work together to prepare for the unthinkable in advance. Creating these documents will help facilitate the involvement of their parents in the event of a medical emergency.
Advance Health Care Directive
In California, an Advance Health Care Directive (“AHCD”) does three things: it provides a medical power of attorney, naming an “agent” to make medical decisions on your child’s behalf, in case they are incapacited and make make medical decisions for themselves; it contains a HIPAA Authorization, which gives advance permission for your child’s doctor to disclose their medical information to you. (Otherwise, California and federal laws prevent doctors from talking to anyone other than the patient.) Finally, California’s AHCD includes a “living will” where they make “advance” decisions about life support and organ donation.
HIPAA Disclosure Authorization
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), requires that doctors protect the privacy of their patients, meaning that medical staff cannot provide information to anyone other than the patient. A HIPAA Authorization, allows health care workers to talk to designated people. This is especially important if your child cannot verbally communicate to authorize disclosures.
Durable Power of Attorney
A Durable Power of Attorney will allow them to name an agent (a parent or someone else) If your children become incapacitated or if they are studying abroad, the agent under a durable power of attorney would be able to, for example, sign tax returns, access bank accounts, pay bills, apply for government benefits or even break a lease.
Creating Your Child’s Documents
You don’t need a lawyer to do this, the documents are statutory forms (created by law). However, a lawyer’s involvement can benefit in making sure you’re using the right form, helping you understand the consequences of their choices, and knowing the details to include, such as what rights you will have and for how long.
The most important thing is to have an open and honest conversation about creating these documents. If you have any questions, contact us and we would be happy to work with you and your child.
At Thatcher | Law, we draft powers of attorney, advance health care directives and other important documents that help our clients and their adult children prepare the necessary documents to ensure that parents can be there for their children in an emergency.
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