Protecting Your Children and Family Through an Advance Directive

Introduction

Both before and after a child reaches the age of majority (usually 18 in most states), an advance directive can play a critical role in who has access to medical information and who may make or carry out health care decisions for a child. Although the terminology and mechanics vary state by state, every U.S. jurisdiction recognizes some form of advance directive for health care. Without an executed advance directive such as a health care power of attorney (“HCPOA”) or a living will, there can be unfortunate results. Let’s look at two situations at different times in a child’s life that illustrate some of the issues.

HCPOA for the Benefit of a Minor Child

You and your spouse decide to take a trip to the interior of the Amazon where electronic communications are often unavailable. Your parents have generously offered to watch your ten-year-old daughter during your trip of a lifetime. While you are away, your daughter has a bicycle accident, and she requires surgery. The medical professionals treating your daughter cannot take certain actions without speaking to her legal guardians. You, however, cannot be reached. Despite being loving, capable, and responsible grandparents, without proper planning, your parents would lack the legal authority to authorize the medical treatment your daughter needs in your absence.

Fortunately, there are proactive steps you can take to delegate legal authority to your parents, which will allow them to make medical decisions for your daughter in your absence without the challenges or delay that could otherwise ensue. Under most state laws, a parent generally has the right to make decisions for his or her minor child until the child reaches adulthood. Depending on applicable law, a parent will usually have two primary options to delegate the right to a grandparent or other designated individual when the parent is unavailable.

For example, under Section 4-3 of the Illinois Power of Attorney Act, “health care powers that may be delegated to an agent . . . include all powers a parent may have to control or consent to health care for a minor child.” Grandparents need such a power of attorney to obtain medical treatment for their grandchild. The same goes for aunts, uncles, and other relatives. Absent a health care power of attorney or related authorization (e.g., HIPAA), federal privacy laws may also prevent medical providers from sharing information with anyone other than a parent. A parent may elect to make the power of attorney effective during a specific time period (e.g., during trips) or to make it effective only when they are incapacitated or unavailable. A parent should select a trustworthy agent who is capable of making important medical decisions. The parent may also choose several agents to act in the order of preference listed in the HCPOA (e.g., grandmother, grandfather, uncle, aunt, etc.); however, only one agent may be designated to act at a time. Such a power of attorney would end when the parent passes away or when the child reaches the age of majority.

The second option in some states is to designate the grandparent as a short-term guardian to make day-to-day child care decisions. This power is broader than the power to make medical decisions under a HCPOA for the benefit of a minor. For example, under Section 11-5.4 of the Illinois Probate Act, the parent “may appoint, in writing, without court approval, a short-term guardian of an unmarried minor.” The written instrument must be signed by the parent before two independent witnesses. The short-term guardianship, unlike the HCPOA, is limited in time. The appointment can only be made for a period of up to 365 days. A parent may not appoint a short-term guardian if the minor has another living parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child-care decisions. Unlike a HCPOA, a short-term guardianship does not terminate upon the parent’s death, but it can be revoked at any time by the parent.

Advance Directive for a Child Who Has Reached the Age of Majority

Imagine that your twenty-five-year-old son, Blake, is gainfully employed and married. Despite your having urged Blake to sign a HCPOA when he turned 18, he still has not done so. While out jogging one evening, a drunk driver runs into Blake, causing a severe brain injury. Unfortunately, he is in an irreversible coma, on a feeding tube, with no expectation of recovery. From your conversations with your son, you know that he would not want to be kept alive. Blake’s wife, however, asserts that Blake would want continued life support even though Blake’s physicians expect he will never recover. What regrettably follows is years of emotionally draining and expensive litigation with court rulings, appeals, political intervention, and national headlines before Blake’s feeding tube and life support are ultimately removed.

This hypothetical scenario is patterned after the tragic Terri Schiavo case in Florida. It arose because, like Blake, Terri never signed a HCPOA or a living will outlining her wishes. Therefore, courts had to reconstruct her intent from second-hand testimony and family members with opposing emotional views. Judges – not Terri – became the final decision-makers. Terri would have had autonomy had she signed a HCPOA naming her decision-maker or a living will stating her wishes. No prolonged court battle would have been necessary. No family fracture would have resulted. No legislature or governor would have tried to intervene.

In the absence of an advance directive, state surrogate decision-making statutes or court-supervised guardianship proceedings may control who makes medical decisions, often with results that do not reflect the individual’s actual wishes.

Why and How To Have “The Conversation”

Many young adults assume that incapacity planning is for “older” people or for later in life.  Incapacity, however, does not respect age, health, or intentions. A HCPOA for a young adult:

• Preserves their independence
• Allows them to choose who speaks for them
• Prevents family conflict
• Avoids court involvement
• Protects privacy while enabling trusted access.

Moreover, a HCPOA is one of the simplest, least expensive, and most protective legal documents a young adult can sign.

While the prospect of having a conversation with your child about a HCPOA can be daunting, it need not be. Here are six suggestions of what you might want to say:

1. Approach the conversation with respect:

“I know you’re legally an adult now, and this isn’t about taking away your independence. It’s actually the opposite—this is about making sure you stay in control, even if something unexpected happens. This is about your choice; not parental authority.”

2. Succinctly explain the legal change at 18:

“When you turned 18, the law changed in a big way. Doctors are no longer allowed to talk to us or let us help make medical decisions unless you give written permission. This is so even if you’re on our insurance, in college, or still living at home.”

3. Frame the HCPOA as a backup plan:

“A health care power of attorney is simply a backup plan. It only matters if you can’t speak or decide for yourself—for example, if you were unconscious after an accident or under anesthesia. Think of it like insurance. You hope you never need it, but it’s there just in case.”

4. Emphasize control and flexibility:

“Through a health care power of attorney, you can have control and flexibility. You can designate anyone you want to be your health care agent. You do not have to name us, and you can change your agent(s) whenever you want. The only limitation is that (depending on state law) you may have to name one person at a time, but you can list as many people as you want in the order you want.”

5. Remove complexity and cost as factors:

“A health care power of attorney is merely a form in which you name your agents and check a box regarding your wishes. Moreover, it is very inexpensive to prepare, and we’ll pay any attorney’s fees that may be incurred. If you become incapacitated without an HCPOA, the process to have the court appoint a decision-maker for you could cost thousands of dollars.”

6. Put yourself in our shoes:

“We have health care powers of attorney, and they give us peace of mind not only for ourselves but also for you and the rest of our family. Wouldn’t you be concerned if we didn’t specify our wishes and you were unable, legally, to take action or didn’t know what we want? Please don’t put us in that position with you. Help us so, in the unlikely event we need to act, we know what to do and will be authorized to carry out your wishes.”

Conclusion

Although parents often think about having a contingency plan in case they cannot make health care decisions about themselves, they often overlook having such a plan in place for their minor children in case they are unavailable or unable to act. They also often do not consider that when their children reach the age of majority, their children should sign a document letting their wishes be known and designating their agents. It behooves every parent to make sure that their children and family are protected.

If we can be of assistance, please contact a member of our Estate Planning team.

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