Health Care Directives

Kris L. Maser, shareholder and Elder Law Department chair for Maser Amundson, P.A.

It’s that time of year again: children graduating from high school – when they prepare to spread their wings and fly off to college.  For the first time the kids won’t be at home and underfoot.  Additionally, after they turn 18 they are legally adults.  We, as parents, won’t have input anymore in what they eat, where they go or who they hang with.  More importantly, we parents won’t have input into their health care.  We will have no right to access health records and no right to make substitute decisions for the kids regarding their health care issues.

The most timely graduation present or 18th birthday present for your child (and for you as parents) is to send them to their first meeting with an attorney to discuss issues surrounding their health.  All people over the age of 18 should have a Health Care Directive.  A Health Care Directive allows your child to nominate someone (hopefully his/her parents) to make medical decisions for them in the event of the child’s incapacity.

Knowing my boys were on their way to college and also aware that the brain is not fully developed until the kids are between 25 and 30 years old, I had nightmares of my children drinking, driving  and generally doing what other 18 year old kids do the first year away from home.  I’d lay awake at night waiting for that phone call telling me there had been an accident and the kids were hurt.  I wanted to be able to continue to care for them and be available to help with medical decision making for the kids should something untoward happen.   Once my sons turned 18, I no longer had that authority as a parent.  So my gift to each of my sons was to have them meet with an attorney in our office (alone) to discuss and hopefully complete their Health Care Directives.  This was one of their first adult decisions.  And although they both gave me a hard time about having to meet formally with a lawyer, they did, in fact, agree to do so.

The Health Care Directive is an advance directive where a capacitated adult nominates another person(s) to make medical and other health related decisions for the Principal (in this case one of my sons) in the event they became incapacitated and could not make  decisions independently.  If someone has not given this decision making authority to another (his/her proxy), there is no one who legally can.  The result is the need to establish a guardianship through a court proceeding.  This process is costly and time consuming.  It involves a court hearing and a judicial determination of incapacity.  The Judge will appoint a guardian to make medical decisions who may or may not be the person who should be making the decisions on behalf of your child.

At 18 children never think they could become incapacitated.  The world is their oyster, until a car, diving, skiing, hockey, biking, etc. accident happens that changes their reality.

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