Parents and grandparents lose right to make decisions for kids over 18

Here’s how to avoid medical and financial problems

Dear Jonathan: I have a question about my grandson who is going off to college in the fall. A close friend of mine told me about something that happened to his granddaughter who started college a few months ago, and it really has me concerned.

Apparently, she ended up being hospitalized for a period of time, and initially was in a coma – she is doing fine now. When her parents, who live a thousand miles away from her college campus, tried to get information about her illness, they were denied because their daughter was over age 18 and because she was unconscious, she was unable to authorize the release of that information to them. This story seems a bit far-fetched to me, but my friend assured me that it is true. Could this have possibly happened, and if so, is there a way to protect against it from happening?

Jonathan Says: Unfortunately, it is very possible that this took place the way it was described to you. When a child turns age 18, a parent no longer has the legal authority to make decisions for that child, including financial and medical decisions.

In the eyes of the law, an 18 year old is legally an adult. Consequently, if your grandson were to get sick or get in an accident and end up in the hospital, due to federal privacy regulations promulgated under the Health Insurance Portability and Accountability Act (“HIPAA”), your grandson’s parents would not have any rights to receive any information from the hospital regarding his condition. Also, his parents would not have the ability to access your grandson’s medical records or intercede on your grandson’s behalf regarding his medical treatment and care without his authorization.

Further, if your grandson is unable to communicate or is in a coma like your friend’s granddaughter was, it would only make the situation worse for his parents because they would be unable to obtain his authorization to see his medical records or participate in his medical treatment. In this event, one of your grandson’s parents would have to petition the probate court to be appointed his legal guardian in order to act on his behalf.

The good news is that there is a relatively easy fix to this problem. Your grandson could sign a durable power of attorney for health care, naming one of his parents as his patient advocate. This would give that parent the ability to act on your grandson’s behalf regarding his personal and medical care decisions if he is incapacitated and unable to do so for himself.

Further, because a durable power of attorney for health care is not effective unless your grandson is incapacitated and cannot make decisions on his own behalf, your grandson should also sign a HIPAA authorization permitting his parents to discuss his medical condition with his doctors and obtain his medical records and medical information regardless of whether your grandson is determined to be incapacitated.

In addition to a durable power of attorney for health care and a HIPAA authorization, your grandson should sign a durable power of attorney for financial matters naming one of his parents as his agent so that that parent can manage your grandson’s financial affairs, including, but not limited to, banking and bill paying, if he is sick or injured, disabled or unavailable because he is away at college.

You should encourage your grandson’s parents to meet with an estate planning attorney in your area so that they can further discuss the advantages of having these documents in place before your grandson goes to college. Good luck.

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., in Grand Rapids, Mich.