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Are You Gambling With Your Family's Medical Care Decisions?

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The original version was first published in Forbes on 6/11/2013 @ 2:40 PM 

Do you have an eighteen-year-old or older, unmarried adult child? Do you have their notarized Healthcare Directive? Do you know what one is? Eighteen-year-olds are old enough to vote, to serve their country, to marry, and to make all their own medical decisions, bar none.  

The fact that you might be supporting them 100%, that they might live with you, and even that they’re on your health insurance policy has no bearing on the enforcement of a law called  HIPAA – the Health Insurance Portability and Accountability Act. 

HIPAA provides that anyone eighteen (18) years old or older is legally emancipated and, as such, is not only entitled to make their own medical decisions but that anything that pertains to them medically cannot be released to anyone other than doctors, without their express written consent. That means that, if your high school senior walks down the street, trips, falls, and becomes unconscious, you - as a parent - have no right to even know that, let alone make any medical decisions for them, unless they’ve given their HIPAA release to the doctor and you’re the named HIPAA Power of Attorney. 

In the case of spouses that don’t have healthcare directives, forty states and the District of  Columbia have laws specifying who can make decisions for a patient who doesn’t have an advance healthcare directive. In many – but not all of those - states, a spouse is designated as first in priority, followed by adult children, parents, and siblings. Other states have different procedures for deciding who will speak for a patient. Even more, a reason to be sure you lock in who makes decisions about your health if you can’t!

There are three basic “Healthcare Directive” legal documents, which may be called different  things, or even combined into one document, in different states: 

  1. A Healthcare Proxy (HCP), Healthcare Power of Attorney (HPA), or Durable Power of Attorney for Healthcare (DPOAH), that appoints and allows you to make medical decisions for a person who is unable to make them for themselves. It is advisable that there be only one HCP  appointed for each person. 
  2. A Living Will, which allows you to state, in advance, your wishes about life support and other kinds of medical treatments. The document takes effect if you can’t communicate your own healthcare wishes. 
  3. A HIPAA Release Form that waives your strict right of privacy under federal law regarding your medical information to only those individuals that you have specifically chosen. It allows your doctor or hospital or insurance company, for example, to release medical information to a  specified person or persons such as family members and even spiritual advisors. 

An Advanced Healthcare Directive, for example, can combine all the above, depending on the state in which you reside. Eighteen (18) is the age of legal emancipation, in every state in the  US, except for four: Mississippi, which is 21, and Alabama, Delaware, and Nebraska, which is 19.  Two states, Ohio and Utah, are even sooner if the child has graduated high school. 

Do you realize that, if you don’t have that set of documents from your child, you, technically,  may have no legal authority to get any medical information about your adult children or to make any decisions regarding their health, if they become ill, incapacitated or worse? 

The same holds true with your aging parents. Do you or someone in your family have their notarized Healthcare Directives? If not, you legally have no say as to what happens to them when they become incapacitated, either. And again, depending on which state you live in, it can also hold true for your spouse. 

You might be saying, “But I’m their mother, father, daughter, son, spouse. I’m sure the doctor  will follow my wishes, especially if I tell him that’s what my child/parent/spouse wanted.” But that’s not a guarantee. We live in a litigious society. HIPAA compliance – the Federal privacy law regarding eighteen-year-olds and older– has become elevated in implementation and stature,

over the past few years. For adults, the divorce rate is around 50%… with even more couples separated. Adult siblings may not agree as to the care of an aging parent. Doctor concerns about malpractice have escalated to new highs. While you may have connections and/or influence in the state in which you live, you may not know anyone in the state where your loved one is being hospitalized or needs decisions to be made, on his behalf. The confluence of all of these factors decreases the probability that a doctor will release information or even allow a  purported loved one to make decisions about their patient, without the proper legal documentation supporting that. Should you have the right? Probably. Many states do make concessions. But do you want to take the chance that you may have to spend precious time getting a court to agree with you? Being proactive and having the proper documentation can save more than just time. It can save your adult child’s life and carry out the known wishes of your aging parent. 

Healthcare Directives are easy and inexpensive to obtain and it is highly advisable that you do so, through an attorney. Each state differs, slightly, in their forms, in their requirements and even in the intent of the language. 

Just something to think about, as the COVID-19 pandemic continues, as students are graduating from high school or college and preparing for work and as you and your parents are aging. By the way… if you and your spouse or partner are in the same accident, who makes decisions?  And might you be an unmarried adult?  

Does someone have your Healthcare Directive?

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Carol R. Kaufman, Founder/CEO of Pinventory, LLC, is the creator of Pinventory®, a web-based  Software-as-a-Service product that collects and organizes your important information into one safe, secure location, allowing you to access it from anywhere, anytime you need it. Her first product, InvesTier®, was acquired by SunGard in 2002. An entrepreneur for over 40 years, Carol’s specialties include public speaking, training, and software/service-based solutions to organizational problems. She resides in Hawthorne, NJ. 

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