Guest Blog by Carol R. Kaufman, Reprinted from Forbes.com
Are you Gambling with your Family’s Medical Care Decisions?
Do you have an 18-year old or older, unmarried adult child? Do you have their notarized Healthcare Directive? Do you know what one is?
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) 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 of 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.
18-year-olds are old enough to vote, to serve their country, to marry and to make all of their own medical decisions, bar none. The fact that you might be supporting them, that they might live with you and even that they’re on your health insurance policy has no bearing on the enforcement of this law.
Do you realize that, if you don’t have that set of documents, 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.
You might be saying, “But I’m their mother, father, daughter, or son. I’m sure the doctor will follow my wishes, especially if I tell him that’s what my child/parent wanted.” But that’s not a guarantee. We live in a litigious society. HIPAA compliance – the Federal privacy law regarding 18- 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 decrease 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 students are graduating from high school or college and preparing for work and as you and your parents are aging. By the way… are you an unmarried adult? Does someone have your Healthcare Directive?
Carol R. Kaufman, Founder/CEO of CareBinders, LLC, is the creator of CBData® Life Inventory™ Solutions, a combination of software and services to help pull all of your important information into one safe, secure location. Her first software product, InvesTier®, was acquired by SunGard in 2002. An entrepreneur for over 35 years, Ms. Kaufman’s specialties include public speaking, training and software/service-based solutions to organizational problems. She resides in the Berkshires in East Otis, MA. You can find the link to CBData with my special discount code at EffectiveDay.com/life-inventory-organizing.