Know the Law: When a Child Turns 18, Consider a Health Care Proxy

Katie Hislop photo
Katie E. Hislop
Published: Union Leader
October 29, 2023

Q:  My son turned 18 this year and is now living away at college.  I’m concerned his doctors will not provide me access to his medical information—that, I will not be able to help him if he gets sick or has a medical emergency while at school.  Is a health care proxy appropriate under these circumstances?

A:  While a child is under the age of 18, the child’s parents are responsible for making health care related decisions on behalf of the child, and health care providers can discuss the child’s health care and share information, including a child’s medical records, with the minor child’s parents.  Once a child reaches the age of 18, however, parents’ decision-making authority terminates, and regulations under the federal Health Insurance Portability and Accountability Act (“HIPAA”) prohibit health care providers from sharing a patient’s confidential health information without the patient’s permission.

For this reason, parents should strongly consider preparing certain documents, including a health care proxy and a HIPAA release, when their children reach adulthood (i.e., age 18) to ensure that they can monitor and direct a child’s health care needs in case of a medical emergency.

A health care proxy allows an individual, called the “Principal”, to designate another individual, called the “Agent”, to make health care decisions for the Principal when the Principal is unable to express preferences or make decisions.  The health care proxy also grants authority to the Agent to access the Principal’s medical records and to communicate with the Principal’s health care providers.  If a child names a parent as an Agent, the parent would be allowed to obtain information about the child’s medical condition, access records, and make decisions on behalf of the child if needed.

However, the authority granted to an Agent under a health care proxy may not become effective until the health care proxy is “activated” by a doctor upon a determination of the Principal’s incapacity.  Therefore, a child who recently turned 18 should also have a separate document that authorizes, with immediate effect, the release of confidential medical information protected under HIPAA for use under circumstances that do not trigger the activation of a health care proxy.  The HIPAA release differs from the health care proxy in that it authorizes health care providers to communicate and share information with named individuals, but it does not grant those individuals any decision-making authority.

While your family may never face an emergency or be in a position to make critical medical decisions for your child, having these documents in place can alleviate stress and avoid complications should an emergency arise.  If you would like a health care proxy for your child or for yourself, you should consult with an experienced attorney to discuss your family’s goals and needs.