My niece’s hard work in high school paid off, and she had many fantastic options for higher education. Despite being from New Jersey, she chose a liberal arts college halfway across the country in Texas and is about to begin her junior year there.
While visiting my sister and her family a couple years ago, my niece got the exciting news about her dorm and roommate assignments. I couldn’t help it. The lawyer in me chimed in, and I asked my sister if she had any legal documents for her daughter in place yet. After all, both in New Jersey and in Texas, my niece was already considered an adult.
I explained that, as difficult as it may be to think about, what if Sidney were in a car accident while in Texas attending school and was hospitalized? Since she’s considered an adult, the hospital will only give you minimal medical information, and you will not have the ability to make decisions for her – whether health care or financial – if she’s unable to make decisions on her own.
(My hypothetical isn’t far-fetched: Youngest drivers continue to have the greatest driving risk.)
I told my sister about the three documents all parents need to have in place, regardless of whether your child is going halfway across the country or starting at the local community college.
Health Care Power of Attorney
If your child, as an 18-year-old freshman at a college on the opposite end of the country, is unconscious in the hospital after a car accident, what can a parent do to help? First, if your child has signed a health care power of attorney (HPOA) making you the “agent,” you will have the ability to view your child’s medical records and make informed medical decisions on his or her behalf.
A power of attorney is a legal tool that specifies who can make decisions for you. Since your student is now an adult under the law in most states at age 18, a parent no longer automatically has the right to make medical decisions.
Without a health care power of attorney, medical professionals would check to see whether a court has gotten involved to appoint a guardian. Then, if there were no guardianship, all health care decisions would lie solely in the hands of health care providers. In sum, getting the HPOA is imperative if you want to have the full ability to assist your child with health care decisions.
Keep in mind that the attorney drafting the HPOA will want the college student to designate several “agents” in order of priority with single authority. For example, my niece’s mother might be listed first; then, if her mother is unable or unwilling to serve, the second person listed – perhaps my brother-in-law, her father – steps in.
You’ll want to be ready with a few names to give to the drafting attorney, and also be ready to discuss whether you want the power to make health care decisions to be effective immediately upon execution of the document, or only triggered when your child lacks the ability to make health care decisions on his or her own.
HIPAA Authorization Form
HIPAA may keep doctors and hospitals from sharing key information with you about your college student. HIPAA, or the Health Insurance Portability and Accountability Act, is a federal law that requires most doctors, nurses, pharmacies and hospitals to protect the privacy of health information.
For the health care power of attorney (HPOA) to be effective in making decisions on the student’s behalf, you – the “agent” – may need to be able to access medical information.
HIPAA allows the release of medical information to a patient’s “personal representative.” And if the health care power of attorney is in effect, the “agent” under that document would be the patient’s “personal representative” under HIPAA.
Powers of attorney should be drafted to comply with the requirements of the HIPAA privacy rules. Make sure the HPOA contains a HIPAA clause explaining that the “agent” is also the “personal representative” under HIPAA. In other words, the authority given to the “personal representative” under the state-specific power of attorney rules must be consistent with the definition of “personal representative” under the federally defined HIPAA privacy rules.
In addition to the HPOA containing the HIPAA-compliant language, have your student sign a HIPAA release form. You’ll want to ask your lawyer about the specifics of your child’s HIPAA form along with the other forms your lawyer can create for your child to sign. Usually, the HIPAA release form will explain what medical information can be disclosed, who can make the disclosure and to whom the disclosure can be made.
Forms are available from many sources, but don’t just grab one and fill it out. It’s best to work with your attorney to ensure you are getting proper wording, in addition to accurate and valid documents.
General Power of Attorney
Don’t rely on joint bank accounts. Your soon-to-be college student should also designate a general power of attorney to manage his or her financial affairs.
Again, if your adult child were ever incapacitated, you would benefit from having this tool in place – you would be named as the “agent” authorized to make financial decisions on his or her behalf. This would allow you to manage bank accounts, pay bills, sign tax returns, apply for government benefits, break or apply for a lease and conduct similar activities relating to your child’s financial and legal affairs.
Without this power of attorney, you will not be able to assist your child in managing his or her financial affairs without a court-appointed conservatorship.
Other Relevant Points
- Update these forms often. Have your adult child review and re-execute these documents every few years with the help of your estate planning attorney. Institutions where you would be most likely to use these documents – such as hospitals and banks – might refuse to honor them if they perceive them to be outdated. Not to mention, state and federal laws might have changed.
- Your child can revoke or change these documents. Your adult child has sole control of the existence of and changes to these documents; therefore, I suggest you continue to discuss the importance of these documents with your child so he or she continues to see the benefit of giving you the access and assistance these legal tools grant.
- Execute them in both the student’s home state and college state. My niece, in this situation, needed to get one set of documents created and signed in New Jersey, and another set valid under Texas law.