A Potential Problem

Can you imagine a situation in which you receive an alarming phone call from your child’s college roommate stating that your child was rushed to the Emergency Room? Now can you imagine not “being there” for them because a Doctor is not obligated to give you any information regarding their medical care? That is exactly what happened to our client, a mother of three from Miami, Florida.

One morning, our client received a phone call from her son’s college roommate who delivered horrible news: Her son – approximately 200 miles away – was being hurried by ambulance to a nearby emergency room with severe, persistent chest pain. Naturally, our client was scared out of her mind and in a panic called the ER to get more information. Unfortunately, the nurse that answered the call told our client: that because her son was 18 years old she had no right to talk with the Doctor. The nurse acted lawfully by not disclosing the son’s medical condition due to the privacy rule of the Health Insurance Portability and Accountability Act, better known as HIPAA.

Parents feel responsible for their child long after their child turns 18; however, from a legal standpoint they are “strangers”. As a parent you do not have the right to obtain medical information regarding your legal age son or daughter, as if you were strangers. This is the case, regardless if the adult-child is covered under his parent’s health insurance policy.

Medical providers have discretion to decide whether to disclose medical information to a relative if they believe it is in the best interest of the patient. However this is not often the case, especially if the medical provider does not know the patient’s relative.

The Solution

Our client’s inability to obtain her son’s medical information could have been avoided with a simple legal document or two. There are three forms that will aid the involvement of a parent or relative in a medical emergency- HIPAA authorization, medical power of attorney, and durable power of attorney.

HIPAA Authorization: A signed HIPAA (Health Insurance Portability and Accountability Act) authorization form gives permission to your medical provider and health insurance Company to disclose medical information to whomever you specify. Young adults who are concerned about disclosure of sensitive information related to sex, drugs, and mental health but still want their parents involved in their care can specify what information may or may not be disclosed on the form. A signed HIPAA authorization before her son required medical attention would have been enough for our client to obtain her son’s health information.

Medical Power of Attorney: A medical power of attorney (“POA”) is sometimes referred to as a healthcare surrogate, healthcare proxy, or durable power of attorney for health care. This document allows you to plan ahead for difficult medical decisions. It allows you to name someone (“agent”) that will make healthcare decisions for you in case you are unable to make them yourself. This is crucial because it prevents disagreements within the family as to who should make these critical decisions. Such decisions include consenting to certain medical procedures, seeking a second opinion, obtaining medical records, or transferring you to a different facility.

Durable Power of Attorney:  A durable power of attorney (“DPOA”) allows you (“the principal”) to select a person (“the agent”) to “step into your shoes” if you become mentally or physically incapacitated. Incapacity means that a person has a disabling medical condition that prevents them from managing their basic needs and financial affairs. Incapacity can be caused by a number of conditions including Alzheimer’s, Dementia, Parkinson’s, etc. With a properly executed Power of Attorney, the agent will be able to make legal and financial decisions on your behalf. This is a very trusting responsibility so you should appoint a family member or close friend.

Although many of these forms can be found online, only an experienced estate planning attorney will know the correct form to use, the legal consequences and potential pitfalls to avoid.