The doctors worked feverishly to try and determine what was wrong with the son and they weighed different options for his treatment, some of which carried much more risk than others. Unfortunately, during this time there was no one who could speak for my friend’s son as to which course of emergency treatment the doctors should take. Nobody was able to act on the son’s behalf to weigh the benefits and risks of the various types of treatments and procedures the doctors were considering. I do not know whether or not the doctors attempted to contact my client, but legally, my client would have had no say in his son’s treatment anyway. Perhaps the doctors could have considered his insight and information as part of their deliberations, but that probably would have been the legal extent of their obligations.
I visited with my client a year or so after his son was released from a two week stay in intensive care following his emergency, and after he told me what had happened, he asked me what he and his wife could have done differently to help their son in what, at the time, seemed like a pretty dire sitaution. For all of you who have adult children, I will give you the same advice I gave to my client.
When a child becomes a legally-emancipated adult, he gains, and his parents lose, a plethora of legal rights and obligations for that adult child. One of those rights relates to the child’s health care decisions. When a child turn what the law refers to as the “age of majority,” his parents’ custodial rights to make health care decisions for the adult child are severed, and the child is all of a sudden responsible for determining his own medical course. How do you make sure that your adult child is prepared for a situation where he needs medical care, but is incapable of communicating with his doctors in determining what that medical care should be?
When it comes to end-of-life, terminal medical decisions that we cannot make due to unconsciousness, the law provides a way for us to make those decisions in advance through a Health Care Directive, otherwise known as a “living will.” But what happens when we find ourselves in an unconscious, incapacitated state out of which we are exepected to ultimately awake, but in which we cannot make decisions for ourselves? The next best thing to being able to make our own decisions about our treatment would be to have someone we know and trust whom we have authorized to make those decisions. For most adult children who are unmarried and thus do not have a de-facto legal custodian in the event of their incapacity, that trusted person could be a mother or father. And the way to authorize that parent to make decisions on the adult child’s behalf would be through the execution of a properly prepared, legally-binding Power of Attorney for Health Care Decisions.
By its terms, a Health Care Power of Attorney would authorize your adult child’s agent, the attorney-in-fact, to make health care decisions on your child’s behalf in the event your child becomes incapacitated and in need of medical treatment. Accompanying that Health Care Power of Attorney should be a professionaly-drafted HIPPA (Health Care Information Privacy and Portability Act) Information Authorization and Release, which gives your child’s doctors and medical caretakers the freedom and obligation to share your child’s health care information with the appointed health care agent. (Yes, even if you hold a Power of Attorney for Health Care for your adult child, a doctor is legally limited in sharing your child’s medical information.) These two legal documents, if properly prepared, would allow you, or any agent your adult child chooses, to legally act on your child’s behalf in the event she cannot make medical decisions for herself.
Parenting is the greatest responsibility a person can undertake. You spend your life caring for your children and making decisions for them that, according the law, they are too young to make for themselves. That love and concern for them doesn’t diminish just because they become adults, but your rights to make decisions on their behalf does. Make sure that they are protected as they go out on their own. Talk with them about the importance of executing Health Care Powers of Attorney, Health Care Directives and HIPPA, or medical information releases. Just because you lose the right to make decisions for them doesn’t mean you lose the right to care about them and to do what you can to make sure that they are taken care of no matter the circumstances.
Michael Wiggins is a private client lawyer who focuses his practice on mid-to-high net worth, simple and complex estate and special needs planning, probate, and business succession and asset protection planning. Michael’s practice also includes business formation and real estate. If you have questions in any of these fields, please call Michael at 206-370-1903 or email him at firstname.lastname@example.org.