As Your Child Grows, Consider a Health Care Proxy
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About half of the states have “fall-back” laws intended to deal with a situation where no HCP has been executed by allowing certain family members to act as a health care surrogate. However, these laws should not be relied upon as an appropriate substitute for an HCP since (a) the family member who may make the medical decision may not be the person whom the child would have wanted, and (b) the law may place limits on the extent of the medical decisions which may be made by the surrogate.
For example, Florida provides that the incapacitated child’s spouse shall have authority to make the child’s health care decisions over and above his or her parents and siblings. If the adult child is in the process of divorce or is otherwise in a contentious marriage, this could certainly result in family discord between the spouse and the child’s other family members; other family members may feel the child would have wanted them to make the decision, particularly if the decision involves the withdrawal of life-sustaining treatment (a situation reminiscent of the infamous Terry Schiavo case). Illinois has a similar law allowing for a family member to become a surrogate, but the law limits the surrogate’s decision-making authority to the provision or withdrawal of life-sustaining treatment — unlike in an HCP where the agent can be given authority over all health care decisions affecting the child.
For states that do not have these “fall-back” laws, it will be necessary to have a guardian appointed by a court. This judicial appointment process can be both expensive and time-consuming since this procedure requires a determination that the child is incompetent based on the testimony of an examining physician. This of course is a severe impediment in the event a decision needs to be made immediately. Additionally, as with the surrogate “fall-back” statutes, there is no guarantee that the person appointed will be the person the child would otherwise want making his or her health care decisions, since most guardianship proceedings allow any relative (and in some cases the attending physician) to seek to be named as the child’s guardian.
Dealing with a child’s life-threatening condition is certainly an emotional burden that every parent hopes to never endure. Finding out that you as a parent do not have the legal authority to immediately deal with your child’s medical needs adds additional frustration to already stressful circumstances. It is not something that you can resolve via Blackberry or have your lawyers easily take care of. You must take the steps required in order to prevent ever having to deal with such a situation. Having your adult child execute an HCP, which names you as his or her health care agent, can provide assurance that you will be able to avoid any barrier to providing swift medical attention in an emergency situation.
BRIAN D. LORETI, J.D., L.L.M, a staff attorney at Summit Financial Resources, Inc., a privately-owned financial planning firm based in Parsippany, N.J., has more than 20 years of experience in estate and gift tax planning as well as individual and business income tax planning.