Protection of personal information, especially personal health information, is something doctors and health facilities take very seriously. They have to, because they are subject to HIPAA – the Health Insurance Portability and Accountability Act of 1996. HIPAA generally provides that if a patient is 18 years old or older, then the patient has to authorize any release of the patient’s health information. As a result, if your daughter or son is 18, then legally a doctor can’t talk to you about your son or daughter’s condition, even if they’re covered by your health insurance and you’re paying for it.
All is not lost, however. Depending on how much authority your child is willing to give you, there are various levels of authorization that allow you as a parent to not only talk to your teenager’s doctor, but even give the doctor instructions if your teenager is unable to:
HIPAA Authorization. The first level of authority is called a HIPAA Authorization. It is simply a form by which your teenager tells health care providers that they can provide you with medical information about your teenager.
Medical Power of Attorney. As you might think from the phrase “power of attorney”, this document actually gives you the right to make medical decisions for your teenager in the event your teenager is unable to do so. This can obviously be useful in situations where, for instance, your teenager has been in a bad accident, is not conscious, and treatment decisions have to be made. The law of the state that you are in may give you some rights as a parent in the event your child is incapacitated, but it’s generally better to have a power of attorney in place to avoid unintended consequences. To be sure, the powers under a medical power of attorney are very broad. As the Texas form states:
"Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are unable to make the decisions for yourself. Because 'health care' means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent's instructions or allow you to be transferred to another physician."
There is another power of attorney that you may want, that is called a Durable Power of Attorney. A Durable Power of Attorney is one of the most powerful pieces of the arsenal when it comes to these types of documents, but it normally covers financial matters and not medical issues. For instance, the Statutory Durable Power of Attorney form in Texas states: THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU. A Durable Power of Attorney gives you the right to act in the place of your teenager for almost anything other than medical matters, and generally remains in effect even if your teenager is incompetent or otherwise unable to act on her or his own. Your teenager may object to this, since a Durable Power of Attorney basically allows you to do anything as their agent that they could do, without even having to give them notice. As noted above, however, Durable Powers of Attorney often do not include powers with respect to medical decisions. As a result, if you want this kind of ability for both normal and medical decisions, you will likely need to have both a medical power of attorney and a durable power of attorney.
In many states these documents are forms that are set by state law, and you can download and fill them out. You need to make sure that you are using a form that works in your state, and if your child is going to college out of state, you should have the form for that state as well. As a result, it probably makes sense for you to talk to an attorney to make sure you have the right forms for your needs.
We never want anything to happen to our children, but it’s even worse if something does happen, and you can’t get any information. With a little advance planning, you can at least prevent that from happening.
 See State of Texas Medical Power of Attorney – Designation of Health Care Agent, available at https://hhs.texas.gov/sites/default/files/documents/laws-regulations/forms/MPOA/MPOA.pdf.
 See State of Texas Statutory Durable Power of Attorney, available at https://hhs.texas.gov/laws-regulations/forms/miscellaneous/sdpoa-statutory-durable-power-attorney.
If you have teenagers at home that are about to go, or go back, to college, you no doubt will be thinking about various lists of items to prepare or procure – books, furniture, clothes, school supplies, gaming console (or not), laundry detergent (hopefully it gets used) and various other items. One thing you might not have thought of is what happens if your son or daughter needs to go to the doctor or ends up in the hospital? Sure, you may be saying “but she’s covered by my health insurance”, but if your daughter or son is 18 or older, you may not be able to find out anything about their condition unless you have prepared in advance.
Stanton P. Eigenbrodt, PLLC
Are your kids leaving for college? Make sure you can still talk to their doctors!
By Stan Eigenbrodt on July 10, 2019