Launching Your Young Adult:

December 22, 2019

Most of your child’s early years of school probably took place with the same group of kids, usually while living at home. After 13 years of early childhood and high school education, your child has graduated and is now entering a new chapter. For many, this means college, but for some it means planning a gap year program or any other venture that involves leaving the nest. Nonetheless, starting a new life chapter does not have to be stressful! These are important things to think about. 


While making sure your child is up to date on vaccinations and prescriptions is essential, here are some other steps to take regarding your child’s health and other important data that you might not have known about before:

> Health related:

  • HIPAA (Health Insurance Portability and Accountability Act) Waiver
  • Advanced Directives
  • Health Care Power of Attorney Agreement (essential) (HCPOA)

                 > Durable Power of Attorney

  • Living Will, for example “Five Wishes”
  • POLST (Physician Orders for Life Sustaining Treatment) required in some states
  • Organ & Tissue donor release if desired
  • DO NOT Resuscitate (DNR) order if desired

> FERPA (Family Educational Rights and Privacy Act) Release

> Financial Power of Attorney

The discussion below is an attempt to make you aware of some of these very important documents and, in some cases, to give you generic examples. It is always advisable to consult your own attorney regarding what specific version of these documents makes the most sense for you and your family given where you and your child or children reside and other specific family issues.

STEPS TO TAKE THAT ARE HEALTH RELATED

> The HIPAA Waiver

Once your child turns 18 years old, access to medical records will be restricted only to people for whom your child has provided explicit consent. This information is protected under the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), which specifies that no one, not even you as a parent, will have access to your child’s records unless your child signs a HIPAA release granting that person permission. It is essential to maintain contact with your child, because colleges and health care facilities will not contact you about your child’s health or medical needs unless your child has experienced a life-threatening situation.

Before your child leaves home, fill out a HIPAA release for your child and have your child sign it in order to grant you access to their health information if an event were to occur where you might need to know what is going on from a health perspective, including, for example, a hospital admission. Signing a HIPAA authorization is crucial because, in the event that your child is admitted into the hospital, you as a parent will be able to receive information about your child’s health status. This is something the hospital staff could not do if your child is over the age of 18. Here is a series of sample HIPAA forms to get an idea of what to look for. Some states have specific requirements. It is also very important to have your child appoint a Health Care Power of Attorney (HCPOA) to make any decisions regarding health care in the unfortunate situation where your child might be unconscious or deemed cognitively unfit to make necessary decisions. These are discussed in more detail below.

> Advanced Directives

Advanced Directives describes a document or group of documents that specify what you would want to happen from a medical decision perspective if you were unable to make decisions for yourself. There are varying definitions of what is included in Advanced Directives in part because the requirements vary by state and because sometimes the components can be grouped together. If your child is going to school in a different state check the applicable laws in both states. You may need documents that satisfy both your home state and where your child goes to school. And of course, the terminology can vary as well. At a minimum, all definitions agree that there should be a Health Care Power of Attorney (HCPOA), sometimes referred to as a Health Care Proxy or Medical Power of Attorney. Most definitions also agree that there should be a Living Will which specifies, in varying levels of detail, what the individual would want in terms of care options, even atmosphere (Music playing? Visitors? Favorite blanket?). There are online documents available to help guide the thought process. They are easy to use, intended to make the whole process of thinking this through non threatening, and even exist in multiple languages. One option is Five Wishes which is discussed in more detail below, and is available for a small donation. In most states it is considered valid for both the living will and HCPOA (these two are often combined). Check the Five Wishes website for current information on states in which you may be interested.

> Set up a Health Care Power of Attorney Agreement with your child

When your child signs a Health Care Power of Attorney (HCPOA), your child will have the chance to appoint somebody to make healthcare decisions in the event that your child is no longer able to. Statutes for all types of powers of attorney vary in different states. For example, if your child is going to school out of state, it would be best to have a HCPOA from both your home state and the state where your child attends school. In fact, most states have enacted “power of attorney” statutes which impact several different types of power of attorney documents so checking what the laws are in any states in which you or your children reside is a good idea. In addition, HIPAA authorization is included in POA forms in certain states. In choosing someone to be the HCPOA, it is often suggested that a second person be designated as the backup in case, for example, the first person was in the same car accident as the person designating the HCPOA or was, for any other reason, just not reachable that day.

Health care power of attorney status can be cancelled in four scenarios: if its appointer revokes status, the status is expired, or if the appointer dies or becomes incompetent. It is worth considering using a Durable Power of Attorney for Health Care because it allows the HCPOA to remain in force if the status of the individual who made the appointment changes, for example if he, she or they remains alive but is no longer competent to make decisions, referred to as “not decisional”, or in some cases, if he, she or they die. Durable POAs maintain status after death in some states, or in cases of incompetence, the latter of which is defined by mental illness, general illness, injury, or disability. However, they can be terminated through legal proceedings, and the status is actually taken away after death in some states. They also can exist when there is a Financial Power of Attorney for example (see below). Durable POAs become effective when they are properly signed and executed.

> “Five Wishes” for the Future to Not Be So Scary

When it comes to living wills and Health Care Powers of Attorney, I often suggest that my clients look at the Five Wishes advanced directives. In most states, they can be used as a living will and a health care power of attorney combined. If you have not already done so, I encourage you, regardless of your age, to look through the packet. Preparing for your child to leave home provides an opportunity for the whole family to sit down and go through the process individually and together and have a healthy discussion about your wishes when there is not a crisis. The guide provided makes the process easy to understand, allowing you to specify things like who you want to designate as your POA, what level of comfort care you would want, even what type of music (if any) that you would want to play while you are incapacitated or dying. As a non-profit, the organization asks for a small donation, but provides a document that you can order through the mail or download online.

Five Wishes and similar processes may sound morbid, but going through this thoroughly and together as a family has been proven to diminish the stigma and fear of terminal illness and the process of dying. It is also important to view Five Wishes as a future plan regarding individual health and not just about potential death. If anything serious happens, families will be at peace after having completed the Five Wishes system ahead of time knowing that they are going about things the way a member would have wanted them too.

> Physicians Orders for Life Sustaining Treatment or POLST, is required by some states even if a Living Will is present. If something serious were to occur to your child’s health, POLST provides specific direction to medical personnel in the case of life-sustaining treatments that the patient specifically wants. While Five Wishes is a legal document, POLST provides specific direction to a medical team itself regarding medical procedures that should and should not be performed, much like a prescription. Both are valid and should be brought to bear at the point in time where decisions are being made regarding end of life wishes. POLST applicability varies by state and each state may have its own form. It is a one page, highly technical form that is usually kept prominently displayed in a patient’s medical file on bright colored paper and moves with the patient from one location of care to the next (hospital to skilled nursing facility for example).Here is a link to the 2019 Illinois POLST as an example. Illinois 2019 POLST.

Some other areas to look into are Organ Donation, and Do Not Resuscitate orders. In the event of death, a young adult can give consent to donate their organs; they are often identified as organ donors through their driver's license. Do Not Resuscitate is usually addressed through the POLST if there is one.

When somebody agrees to a Do Not Resuscitate order, CPR will not be performed if the heartbeat stops. DNR orders are always written by a doctor, based on what is known to be the patient’s wish or in the absence of that, direction provided by the Health Care Power of Attorney or, in the absence of that, next of kin. DNRs deny any help from breathing tubes, electric shock, or medicine in an effort to prolong life.

The Importance of FERPA

FERPA, short for the Family Educational Rights and Privacy Act gives parents the right to protect certain details about their children’s education history, although many of the rights in FERPA are given over to students once they turn 18. However, you can still make the request to protect details about your child’s education by signing a FERPA agreement, in which you can continue to access information about your child’s education even after they reach adult status. When students over 18 and their parents sign FERPA agreements, they can review all of the information in the records that the student’s university holds. In addition, universities often need written consent from students and their parents to release any necessary information from the student’s records. This is important if parents and students believe that information in students’ education records is inaccurate.

Don’t forget the Power of Attorney for Finance

Your child is likely to have bank accounts, perhaps even trust accounts, as well as financial obligations. In case of an accident or situation in which it becomes imperative that someone makes sure that bills are paid and financial decisions are made during an interim or longer term period while your child is unable to do so, having a properly executed Financial Power of Attorney is advisable with someone designated as that individual able to make financial decisions as needed. As with the Health Care Power of Attorney, this can be created as a Durable Power of Attorney. In many cases, people explicitly choose two different people to perform the health care versus the financial role because they feel that one individual will be able to best represent what they want in terms of health care choices while another may be best qualified to make financial decisions.

And now the LAUNCH...

Maybe you thought that launching your child meant providing some cookware, a set of tools and filling the refrigerator.  Actually these “tools” may be even more important because they truly protect your child in case the unthinkable occurs, a situation in which your child isn’t able to make decisions and needs help but legally you aren’t even allowed to know what is going on without having the appropriate signed releases in place ahead of time.  That is why it is important to have these in place ahead of time, and hope you never need them, as your child starts this new chapter as a young adult!!

Our best to you and your family as you move forward into the new and exciting future together,


Lee


"Your Medical Records (for Teens)." KidsHealth. February 2015.
Fletcher, Christine. “What Legal Documents Do Your Kids Need Before Going To College?” Forbes. Forbes Magazine, August 29, 2018.
Feinstein, Susan. “Will You Be Able to Help Your College-Age Child in a Medical Emergency?” Consumer Reports, n.d.
Feinstein, Susan. “Will You Be Able to Help Your College-Age Child in a Medical Emergency?” Consumer Reports, n.d.
“Understanding and Using Powers of Attorney.” Takacs McGinnis Elder Law Care.
“IDPH UNIFORM PRACTITIONER ORDER FOR LIFE-SUSTAINING TREATMENT (POLST) FORM,” Illinois Department of Public Health, 2019.
Young, Christopher. “You've Turned 18, Now What? Important Legal Documents Every Young Adult Should Have.” Forbes. Forbes Magazine, September 5, 2019.
Family Educational Rights and Privacy Act (FERPA).” Home. US Department of Education (ED), March 1, 2018.

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