Alice and Mark drove John out to Worcester and dropped him off at his dorm. The college was about two hours from their home on Cape Cod. Once he was moved in, Alice gave him a tearful goodbye. Things seemed to be going well that first semester of college. They talked and texted regularly. John hadn’t come home yet and everyone was excited to see him during the Thanksgiving break.
About 10 pm on the Thursday before Thanksgiving, Alice and Mark received a call from Frank, John’s roommate. Frank explained that he was at the emergency room of the local hospital. He explained that he and John had been in a bad car accident. Frank was okay but John didn’t seem to be doing well. The hospital wouldn’t tell Frank anything and he thought they should come to the hospital right away. Mark called the hospital to find out what was happening, but they would not tell him any information because John had not given them permission to discuss his medical care with anyone.
The drive to Worcester was nightmarish. When Alice and Mark finally arrived they found out that John had been moved to a room in the critical care unit. They went up to check on him. The nurse explained that John was resting now and while it might be a while before he was 100% he should be okay. Alice and Mark were relieved and started to ask more questions. But the nurse said until John woke up and gave permission for them to discuss his medical care she could not give any more information. Eventually, John did wake up and gave permission for his parents to speak to the doctors about his care.
How could something like this happen? It happens every fall at one college or another. Why? Because once a person reaches age 18, that person is a legal adult. As an adult, no one else is entitled to make medical or financial decisions for us unless we authorize them to so. Our medical information is private and the federal HIPAA law says it is against the law for any medical person to discuss your private medical information with anyone beside yourself.
How can this situation be avoided? Well, prior to going to college, John should sign three basic documents: a HIPAA release, a healthcare proxy and a durable power of attorney. With these three documents John’s parents would be able to get the information they wanted about his situation from the hospital and make legal and medical decisions for John if John was not able to make them for himself.
Durable Power of Attorney – This is a legal document in which your child/grandchild designates who he wants to make legal and financial decisions for him if he cannot make them for himself. Our DPOA is extremely comprehensive. It allows the agent to handle virtually all legal and financial matters for your child or grandchild. Our DPOA is in effect right away. This means the agent can use it even if the child /grandchild is not disabled. This is necessary for the DPOA to be accepted at many financial institutions. Therefore, it is very important that your child/grandchild pick only people whom he trusts to be his agent on his Durable Power of Attorney. Every Durable Power of Attorney should have a primary agent and an alternate agent who would act only if the primary agent is unable to act for your child/grandchild.
Health Care Proxy – This is a legal document in which your child or grandchild designates how he would want his agent to make his medical decisions if he cannot make them for himself. It is only effective when a doctor indicates in writing that your child/grandchild is not able to make medical decisions for himself. Every Health Care Proxy should have a primary agent and an alternate agent.
HIPAA Release – The Health Insurance Portability and Accountability Act preserves the privacy of your child/grandchild’s medical information. It prohibits access to his medical information to anyone except himself. It also makes it very difficult for family members to assist each other with medical issues such as insurance, finding out about test results, speaking to a doctor or pharmacy about a prescription. In our HIPAA Release, your child/grandchild authorizes the people listed on it to have access to his medical information. The HIPAA agent can fax or give a copy of the HIPAA Release to the medical provider and then the medical provider will be allowed to speak with that person.
Do you have a child or grandchild heading off to college this fall? Consider calling the office today at 508-994-5200 to prepare these important estate planning documents!
©Surprenant & Beneski, P.C. 35 Arnold Street, New Bedford, MA 02740, 336 South Street, Hyannis MA 02601 and 45 Bristol Drive, Easton, MA 02375. This article is for illustration purposes only. This handout does not constitute legal advice. There is no attorney/client relationship created with Surprenant & Beneski, P.C. by this article. DO NOT make decisions based upon information in this handout. Every family is unique and legal advice can only be given after an individual consultation with an elder law attorney. Any decisions made without proper legal advice may cause significant legal and financial problems.