In Montana, when a child turns 18 parental authority for managing a child’s affairs, including receiving health care information and making health care decisions, generally ceases.
Additionally, the federal Health Insurance Portability and Accountability Act (HIPAA) prohibits medical providers from sharing protected health care information about patients over age 18 without written authorization from the patient.
If your child is injured or is suffering from a severe illness or mental health emergency and cannot make informed decisions for themselves, health care providers do not have to discuss your child’s medical situation with you or share information with you. This applies even if your child is covered under your health insurance.
If your child is traveling abroad, away at college, or is injured, and you need to assist with financial matters, you no longer have the authority to do so. This means you may not be able to assist your child with renewing their car registration, signing or terminating their apartment lease, or accessing their bank accounts.
In the case of an injury or serious illness, it may be too late to obtain written authorization from your child if they are not alert and able to make informed decisions. In such circumstances, your only option is to be appointed a legal guardian and/or conservator by a Court. This can be costly and intrusive. And, it may not be a quick process, particularly if an emergency happens when the Court is closed.
While your child is healthy, they can sign a durable power of attorney authorizing an agent to act on their behalf in the event assistance is needed, whether due to an emergency or for convenience. It is important to have a durable power of attorney for both financial and health care matters. The power of attorney should specify that it is durable so that it remains effective even if your child is incapacitated. Your child can nominate you, or another trusted adult as their agent; and, the agent they nominate for financial matters can be different from the agent they nominate for health care matters. An agent may act in the above-described situations without Court involvement.
In conjunction with a durable power of attorney for health care, your child should also have a living will (also known as an advanced directive). A living will allows your child to provide direction, in writing, regarding life-extending treatment and organ donation. A living will take the pressure off of family members having to make difficult decisions in a time of tragedy.
A properly drafted power of attorney and living will should be valid in any state, and many countries. This is important for your child who is off to college or traveling abroad.
Worden Thane’s Estate Planning attorneys have the experience and expertise to guide you and your child through these issues, and more, including drafting effective powers of attorney and living wills. Contact Worden Thane’s Estate Planning attorneys today for more information.