(Note about the Author: Ben Cutner, a rising junior at Davidson College, is interning with Lamson & Cutner this summer. He is interested in the possibility of pursuing a legal career. We asked him to write a brief article on a topic of interest to him. His article should be of particular interest to parents who have children 18 years of age or older.)
Everyone should have a Health Care Proxy, including young adults. A health emergency or major accident can happen to anyone, regardless of his or her age, and at any time. The risk of a life-threatening car or biking accident, for example, is not less for young people. Generally, young adults are more likely to engage in riskier activities than more mature adults.
A Health Care Proxy assures that, were you to be seriously injured and unable to make your own medical decisions, your legally appointed health care agent would be able make them for you. Otherwise, your parents or other family members would have limited authority, if any, to act on your behalf.
Imagine you have a son or daughter away at college who is seriously injured and becomes incapacitated. You might think that, as the parent, you can helicopter in and make all the medical and health care decisions on your child’s behalf. After all, he or she is still a dependent, on the family insurance plan, and lives at home in the summer.
If your son or daughter is 18 or older, however, he or she is legally an adult in New York and in almost every other state. Unless legally appointed as the health care agent, a parent has no authority to make medical decisions on behalf of their adult child. Please do not assume that health care professionals will allow you to decide as the parent. Without a HIPPA waiver, they may even refuse to provide you with all of the information you would like to have about your child’s medical condition.
The New York State Department of Health guidance on the Health Care Proxy includes the following FAQ:
“Who will pay attention to my agent?
All hospitals, nursing homes, doctors and other health care providers are legally required to provide your health care agent with the same information that would be provided to you and to honor the decisions by your agent as if they were made by you.” (https://www.health.ny.gov/publications/1430.pdf)
Despite this guidance, Lamson & Cutner attorneys recommend that the best practice is for your Health Care Proxy to include a HIPAA waiver. HIPAA, the Health Insurance Portability and Accountability Act, strictly controls who can see your health information. Putting a HIPPA waiver in your Health Care Proxy will assure that your agent can access all of the information needed or desired to make an important health care decision on your behalf.
A Health Care Proxy is an advance directive—the type of document that is handled before it is needed. We sincerely hope young adults will not need their Health Care Proxy any time soon, but accidents happen. However unlikely one may be, please consider planning and preparing for a health emergency ahead of time.
If you need advice or help with your advance directives, you may want to consult with one of the experienced attorneys at Lamson & Cutner, P.C.