Imagine the nightmare situation of sending your child off to college and he gets into a serious accident, then you call the hospital to find out about his condition and are told, “I’m sorry, but I’m not authorized to provide you with any information or allow you to make any decisions.” A frustrating reality for parents is that once a child turns 18, they have all the legal rights and privileges of any other adult: they can vote, enter contracts, get married, and they also have the right to privacy.
New California Law
A new California law became effective on January 1, 2023, requiring hospitals and health care providers to consult with the next of kin of an incapacitated adult patient and allow them to make medical decisions on the patient’s behalf, unless there is a valid advance directive that states otherwise. This “default surrogate consent law” applies to spouses or domestic partners, siblings, adult children and grandchildren, parents, and an adult relative or close friend. It generally provides a hierarchy of authorized family decision-makers who in descending order starting with the spouse can make medical treatment decisions on someone’s behalf. An important caveat is that the hospital or provider has discretion to decide which family member or close friend can make medical decisions, but they must act in good faith and in the best interest of the patient. And many times a hospital will rely on the person who initially cared for or brought an unconscious patient to the emergency room.
For this reason, we strongly advise that your adult child have two straightforward legal documents in place to ensure that you are able to intervene if your child can’t make those decisions for himself:
1. HIPAA Release
The Health Insurance Portability and Accountability Act, better known as HIPAA is a federal law that protects the privacy and security of health information and prohibits medical personnel from revealing it to an unauthorized person. In the eyes of the law, it doesn’t matter that the parent pays for the health insurance of the child. But HIPAA does give individuals the right to authorize or restrict the disclosure of their health information to others. A HIPAA Authorization allows health care providers to disclose and share medical information about an adult child with the people he chooses to list on the form. The adult child can specify what information they want to share and what information they want to keep private, such as information about sexual, mental, or substance abuse issues. The adult child can also revoke the release at any time.
2. Advance Health Care Directives
An advance directive is a document that allows an adult to express their wishes and preferences regarding their medical care, such as what types of treatments they want or do not want, and who they want to make decisions for them if they are unable to do so. An advance directive can name a person as the patient’s medical agent and overrides the next of kin law to give that agent the sole authority to make medical decisions. An advance directive must be signed by the patient and witnessed by two adults or notarized.
These forms can vary by state and by campus, so parents of college students should check with their child’s school and state laws to see what forms are required or recommended. Parents should also keep copies of these forms and make sure their child’s health care providers and school officials have them as well.
If you are interested in helping your child, get these important documents in place, have them call me! (714) 619-4145