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As Your Child Grows, Consider a Health Care Proxy

   While darting off to a meeting to close your latest deal, your assistant calls to remind you that your bags are packed and your flight to Paris leaves in six hours for another meeting for another deal. Beyond that is an eagerly anticipated vacation with the family.

   But ‘best laid plans’ don’t always pan out. Your Blackberry rings. It’s your son’s friend calling to tell you that your 18-year-old son has had a serious accident while skiing and is lying unconscious in the hospital.

   Your heart pounds as his friend tells you that he believes your son may be in need of surgery but there is no one there to make a decision for him and the doctors will not release the information.  You finally contact the hospital and begin to sense relief in that, as the parent, you will be able to make decisions on the medical attention he requires.  However, your initial relief soon turns to more anxiety and frustration upon hearing the hospital staff person ask you a simple question: “Sir, are you authorized to act on your son’s behalf under a health care proxy?  If you are not, then I’m afraid we cannot take any direction from you.”

   At that moment, you suddenly realize that you never followed through when your estate planner advised filing the proper paperwork that would have granted you and your spouse the rights to make this type of crucial decision in the event of such a healthcare emergency.

   As any experienced estate planner will advise you, a comprehensive estate plan should always include preparation of a document known as a “health care proxy” (an “HCP”), which grants another individual (an “agent”) the authority to make all health care decisions on your behalf in the event you are incapacitated and therefore unable to make the decision yourself.  An HCP is a critical component of any estate plan since, without it, the ability to make health care decisions for you, particularly in emergency and life-threatening situations, can be significantly impeded.

   However, as the above example illustrates, if you also have a child who has attained adulthood, you should also take the extra step of seeing to it that your child execute his or her own HCP which names you as the child’s agent for making health care decisions.  While the child is a minor, the law in every state will allow you as the child’s legal guardian to make virtually all health care decisions for the child.  However, once the child has attained the age of majority (which is 18 in most states), you will no longer have decision-making authority. 

   This is a concern that can easily be overlooked by parents in the process of doing their estate planning, especially where the child has recently attained adulthood and is living on your property as a dependent.  In such a case, many parents often mistakenly assume that they still have authority to act as the child’s legal guardian because they are providing his or her support.

   Should you find yourself in an emergency medical situation involving your adult child who does not have an HCP, not only may you be unable to authorize a particular treatment for the child and give informed consent on his or her behalf, you may also be unable to obtain any information on the nature of the child’s condition, the type of treatment needed, or any other information pertaining to his or her health, regardless of whether the medical situation is immediate and life-threatening.  Under the Health Information Portability and Accountability Act (“HIPAA”), all medical information pertaining to any adult individual is private and may only be released to a person who has been designated as the patient’s “personal representative”, which is normally included as part of a well-drafted HCP.

   For example, I know of a case of a successful Florida insurance agent who one day was contacted on the phone by his 19-year-old daughter’s college roommate explaining that the daughter was speaking incoherently and behaving unusually.  The roommate immediately brought the daughter to the hospital at the father’s urging.  Upon arriving at the hospital with his wife, the hospital clerk correctly told the couple that the hospital could not confirm their daughter’s patient status or anything else about her condition unless the parents produced an HPC that would grant access to their adult daughter’s health-care information as her personal representative under HIPAA.  Although the daughter was their dependent, her adult status took precedence under HIPAA.

   As would be the case if you did not have an HCP, what other recourse is there if your adult child is unconscious and lying in an emergency room, or is otherwise unable to make a medical decision?

   About half of the states have “fall-back” laws intended to deal with a situation where no HCP has been executed by allowing certain family members to act as a health care surrogate.  However, these laws should not be relied upon as an appropriate substitute for an HCP since (a) the family member who may make the medical decision may not be the person whom the child would have wanted, and (b) the law may place limits on the extent of the medical decisions which may be made by the surrogate.

   For example, Florida provides that the incapacitated child’s spouse shall have authority to make the child’s health care decisions over and above his or her parents and siblings. If the adult child is in the process of divorce or is otherwise in a contentious marriage, this could certainly result in family discord between the spouse and the child’s other family members; other family members may feel the child would have wanted them to make the decision, particularly if the decision involves the withdrawal of life-sustaining treatment (a situation reminiscent of the infamous Terry Schiavo case).   Illinois has a similar law allowing for a family member to become a surrogate, but the law limits the surrogate’s decision-making authority to the provision or withdrawal of life-sustaining treatment — unlike in an HCP where the agent can be given authority over all health care decisions affecting the child.

   For states that do not have these “fall-back” laws, it will be necessary to have a guardian appointed by a court.  This judicial appointment process can be both expensive and time-consuming since this procedure requires a determination that the child is incompetent based on the testimony of an examining physician.  This of course is a severe impediment in the event a decision needs to be made immediately.  Additionally, as with the surrogate “fall-back” statutes, there is no guarantee that the person appointed will be the person the child would otherwise want making his or her health care decisions, since most guardianship proceedings allow any relative (and in some cases the attending physician) to seek to be named as the child’s guardian.

   Dealing with a child’s life-threatening condition is certainly an emotional burden that every parent hopes to never endure.  Finding out that you as a parent do not have the legal authority to immediately deal with your child’s medical needs adds additional frustration to already stressful circumstances. It is not something that you can resolve via Blackberry or have your lawyers easily take care of. You must take the steps required in order to prevent ever having to deal with such a situation. Having your adult child execute an HCP, which names you as his or her health care agent, can provide assurance that you will be able to avoid any barrier to providing swift medical attention in an emergency situation.

BRIAN D. LORETI, J.D., L.L.M, a staff attorney at Summit Financial Resources, Inc., a privately-owned financial planning firm based in Parsippany, N.J., has more than 20 years of experience in estate and gift tax planning as well as individual and business income tax planning.

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