Intro by Cass Grange, Senior Advisor Associate
Article by Katherine Akinc, Estate Planning & Probate Attorney at Brink Bennett Flaherty Golden pllc

Today’s article hits home for me.  When I first heard this idea, I thought, “I don’t need to take her advice!  This won’t happen to my family!” Then I thought about what she said.  She said that families are vulnerable when their young adults turn 18.  Teens over age 18 are seen as legal adults by the law and by the health care profession.  So, if my young adults have an accident or get sick, or have mental issues, I don’t have any rights as a parent.  Whaaaaat? 

The transition of kids graduating from high school and moving on to college or off to work is a big one.  We don’t think that we need to revisit our estate plans to cover for emergencies the young adults may have, but we do.  I heard a horror story from one of my friends, who has a daughter who attempted suicide at college and the young woman was placed in a mental hospital for three days. Without legal documents, her mom could not speak to her or her doctor.  After thinking about what Katherine said, and hearing this, I decided to take action.  I now have the Power of Attorney and the Health Care Power of Attorney for both of my college-age sons and I feel much more confident that our family is equipped to handle the new challenges and opportunities the future brings with young adults in college.  Read more about what Katherine suggests in this powerful article…

Summer is right around the corner which means that college students will be home from school for some hot meals, clean clothes and powers of attorney?  Although parents may still consider their eighteen-year old to be a child, in the eyes of the law, he or she is an adult.  Consequently, parental rights are significantly diminished, particularly when it comes to accessing healthcare information and making medical and financial decisions on a child’s behalf.  Moreover, some universities, such as MIT, consider all students, regardless of age, to be emancipated adults so parents and students should ask administrators about a school’s specific policies.

Many parents are surprised to learn that if their child needs medical attention (including for mental health purposes) while away at school, the parents may not be contacted and even if they are made aware, medical professionals will not share any health care information without a release or a court order.  Likewise, medical personnel are not obligated to follow the instructions of anyone other than the patient.  Similarly, financial institutions, utility providers and even landlords typically will not act on anyone other than the principal’s instructions.  Although Texas law does provide an ordered list of “adult surrogates” who may consent to medical treatment of an incapacitated adult patient, such persons are only consulted after it has been determined that a medical power of attorney does not exist, and this potentially may cause delay, confusion and conflict, especially for patients with divorced or estranged parents. 

Waiting until an emergency occurs is too late; at that point, the child is unable to convey her preferences or designate an agent to make healthcare and financial decisions on her behalf.  This can be particularly important for students with divorced or separated parents.  Therefore, students should have some basic estate planning done, namely the execution of a medical power of attorney, a HIPAA release form, and a statutory durable power of attorney.

As a brief overview, a medical power of attorney allows a principal to designate the persons to make healthcare decisions for the principal in the event of incapacity; it does not convey the principal’s wishes when it comes to specific treatment options.  A Directive to Physicians (sometimes referred to as a living will) provides more of this instruction and should also be considered when speaking to an attorney.

The Health Insurance Portability and Accountability Act, also known as HIPAA, prohibits health care providers from releasing an individual’s health care information to anyone other than those persons named on the individual’s HIPAA release form.  This means that if a child is in a car accident while away at school, doctors cannot release information to his parents unless the child has signed a HIPAA release authorizing this communication.

Finally, a statutory durable power of attorney allows a person to designate an agent to act on his or her behalf for a range of transactions, though mostly financial.  This instrument may be made effective immediately upon signature or only upon the principal’s incapacity. The advantages and disadvantages of each approach should be discussed with a qualified attorney.

On the other hand, a medical power of attorney only becomes effective if the principal is unable to make medical decisions for herself.

Although forms for these documents can be found online, it is worthwhile to meet with a qualified attorney for issues this important to make certain that they are prepared correctly and fully understood by the person signing.  Additionally, if a child attends school in a different state, it is prudent to have the documents prepared in any state in which he or she spends a significant amount of time. Although a Texas medical power of attorney should be accepted by a California hospital, the California medical personnel will not be as familiar with its form which may slow down the process. On the other hand, they would be more likely to recognize a California medical power of attorney.

Once documents are prepared, a student should provide a copy of his medical power of attorney and HIPAA release form to the school’s health center as well as provide the original statutory durable power of attorney to banks so that the bank may make a copy for their records.  Some universities and financial institutions require additional forms as well in order for a third party to act on behalf of someone else so it is prudent to ask.

Finally, although not technically a legal matter, a student should write down important information, such as computer passwords, automatic bill payments and where critical documents are located, so that someone else could step in to handle these matters if the student was unable to do so.