Best 18th birthday gift? A healthcare power of attorney!
I know this may sound like the most depressing gift, but please don’t stop reading! Stick with me and I think you will agree. And a bonus, it’s free.
A Healthcare Power of Attorney is the document that allows an adult to choose who will make medical decisions for them if they cannot. Your 18-year-old may not be the best decision maker, but they can probably make their own medical decisions. They can ask questions of their doctor, seek additional information, weigh options and they are likely healthy. If you are just thinking about today, it seems unnecessary. But it is not about today, it’s about what happens when the unexpected accident or illness strikes a family. The most common event I see is a parent needing a guardianship because their adult child was in a car accident. This is not surprising given the fact that car accidents are one of the leading causes of injury in the United States.
More times than I can count, parents come to my office because their adult child has been in a serious car accident and unable to communicate. The most common reason the person is unable to communicate is because they suffered a brain injury during the accident. The parents have been able to continue making decisions for the child based on the surrogate decision maker statutes. This law allows a parent of the patient to make medical decisions if the patient cannot make or communicate healthcare decisions. Sometimes issues come up during the hospitalization that require the appointment of guardian. Surrogate decision maker statutes do not include handling all the needs that may come up, such as signing contracts for long term care facilities or making decisions on patient discharge.
If the person is transferring to a rehabilitation center or needs a decision maker on a long-term basis once they are discharged, the medical providers will often request that the parents seek guardianship so that they have the legal authority to make decisions on an on-going basis.
The hospital is planning for discharge and they inform the family that they will need to obtain legal authority to continue making decisions for their injured adult child. Even if the prognosis is good for recovery, a brain injury can take months or years for recovery, so a long-term medical decision maker is needed.
This is when the family comes to see us. They are distraught over the tragedy and overwhelmed by the change in their lives. Now they are going to court to obtain guardianship over their adult child. This means filing a petition with the court (so much paperwork), getting the adult child appointed an attorney, personally serving them, being interviewed by a court investigator, and attending a court hearing. This added stress is not what they need. And it is expensive.
This is the heartbreak I see in my practice. The family might have avoided the need for a guardian and the stress and expense of a court process if their adult child had a Healthcare Power of Attorney (“HCPOA”). If the HCPOA is properly drafted they could make those medical decisions, as they would be the nominated agent to do so.
HCPOA is important to me because when my kids were younger, we were struck by an impaired driver and my fourteen-year-old son suffered a traumatic brain injury. Don’t worry he is doing awesome now, graduated from ASU and is a teacher! Had he been an adult at the time I would have had to go through the Court, however, because he was a minor, I was able to make the medical decisions for him. Unfortunately, I have watched other families have to go through the Court because their children were adults that did not have a HCPOA. Having this unexpected tragedy occur, I decided when my kids turned 18, I would give them the gift of a HCPOA. As you can imagine, when I presented them with their gift they groaned and rolled their eyes a little, but eventually they came around, realizing it is an amazing gift for them and for their parents.
Having the HCPOA ensures that if something happens to your adult child, you can take care of them immediately and long term. It allows the family to focus on the person injured or impaired and to not be distracted with the expense and process of having to seek guardianship through the court.
As I mentioned, it is free to create your own HCPOA! The Arizona Attorney General’s website has a free Lifecare Planning Packet, which includes all of the documents you need. CLICK HERE to visit the Arizona Attorney General’s website.
Congratulations on your child turning 18 and give them the gift of planning and protection!
Written by: Jennifer Kupiszewski, Esq.
The lawyer disclaimer: We hope you find this informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since this was written, the greater the likelihood that the information might be out of date.
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