February 22, 2015
Insights - Blog

Accessing Your Adult Children’s Medical Records

By: Philip L. Burke, Esq.

So your son or daughter is off to college, or you are an "empty nester," or one of your children has reached the age of majority (that is 18 years old in case you were wondering). You have raised them to be independent, savvy and capable of making their own decisions, so you are thinking that you are off the hook from the parenting point of view.

While this may be the case, there is at least one situation where you may need to continue to be involved and that is with regard to health care decisions.Once an individual reaches 18 years of age that individual has the right to make his or her own health care decisions.However, if the individual is incapacitated because of an accident or illness, your right to access your adult child's medical records and make these decisions for him or her no long exists.Consequently, you may find yourself in "limbo" with regard to trying to get appropriate medical treatment for your adult child.

This problem arises as a result of the privacy rules under the Health Insurance Portability and Accountability Act (HIPAA) which took effect on April 14, 2003.The privacy rules severely limit the ability of a health care provider to disclose "protected health information" to anyone without authorization from the patient.This authorization might be contained in the patient's medical records but is also commonly provided for through the use of a Health Care Proxy (in New York). Under New York law, an adult can appoint an agent (the "proxy") and give the agent the authority to make and communicate health care decisions in the event the patient is unable to do so. The agent can also be given the right to make decisions regarding the continuance or discontinuance of life support treatment under appropriate circumstances. The Proxy also authorizes access to medical records so that informed decisions can be made.Under New York law, the Health Care Proxy is the preferred document for these purposes.Other states have similar legislation, but may use a "Health Care Power of Attorney," or other type of advance health care directive such as a Living Will.

If there is no proxy or authorization in place, a court proceeding may be commenced which can provide judicial authority for health care decision making powers.However, procedures like this can be time consuming and expensive.On the other hand, having a simple Health Care Proxy in place avoids those concerns.

If your adult child is a resident of another state, you should probably have a health care decision document executed under the applicable laws of that state.For college aged children, generally their "domicile" doesn't change while they are away and a Health Care Proxy form executed under New York law (assuming you are a New York resident) should suffice.Generally speaking, a document like this that has been executed in accordance with applicable state law will be honored in other states.

Hopefully, a situation will never arise where the Proxy has to be used for an adult child.As a matter of fact, these types of decisions are generally thought to apply primarily to senior citizens or someone with a severe/terminal illness.Unfortunately, situations can arise where the ability to make these types of decisions for an adult child becomes vital and having the appropriate documentation in place can save a great deal of time, money and anguish.