Turning 18 is a significant milestone for children and parents alike. It’s a rite of passage that children look forward to, as they think “Finally, I can make decisions on my own.” On the other hand, parents typically feel some sort of apprehension about their child entering the perils of the adult world. “Where did the time go,” they wonder, and “Will they be okay on their own?” That apprehension is likely intensified for parents of children who have been diagnosed with a mental illness.
Many children who are living with a mental illness will still need guidance and support when it comes to managing their diagnosis. But when a child turns 18, the law states that parents are no longer legally able to make decisions for their child in most cases, according to The Department of Health and Human Services. This means that, at least in the eyes of the law, it will be up to your child to make decisions regarding their physical and mental health. Parents no longer have authority to make these decisions, or even be informed about medical issues without the patient’s consent. While this may seem unnecessarily strict at first glance, the law ensures that every adult individual has the right to choose their treatment and whether or not they want to disclose their medical history and information and who to disclose it to.
As Therese R. Nicklas, Certified Financial Planner, tells the The Wall Street Journal, when your child turns 18 parents lose the legal right to make decisions about their child’s healthcare treatment, unless the child gives written permission. Also, without the child’s permission the healthcare provider is barred from disclosing anything to you about your child’s health. You are, of course, still allowed to provide any information you want to the provider or hospital and they have to listen to you. This may greatly improve their understanding of the situation and the treatment they offer your child.
Because of these health care laws, it’s important to prepare and discuss with your child the steps you can take together as a family to make sure that your child continues to receive quality care after they turn 18.
Even if your child is not currently diagnosed with a mental illness, it’s important to consider how you will be involved in your adult child’s health care decisions. Some mental illnesses don’t appear until young adulthood (18-25), and college especially is a time of change for young adults. Adjusting to these changes can be stressful for some, and transitioning to adulthood — even if your child isn’t going to college — comes with a new set of responsibilities and potential stressors. In my own practice, I have worked with teens who have had a tough time adjusting to the lifestyle changes and independence that college brings; some of my patients have experienced mental health crises while in college. Parental support is critical to successfully treating any mental illness during this time, but you must be aware of the law and prepared to help them access the resources they need.
Before you have visions of getting that dreaded call from your child or college administrator while they are away, there are two important steps you can take as a family to help make your child’s journey to adulthood a smooth one.
Helping your child prepare a healthcare proxy document
One step you can take is to have your child sign a document called a health care proxy, to go into effect once they turn 18 and are legally in charge of making their own healthcare decisions. A healthcare proxy legally gives the parents permission to make medical decisions regarding their adult child, notes The Wall Street Journal. For example, if your child has signed a healthcare proxy and then experiences a mental health crisis, you as the parent will be able to make decisions regarding treatment for your child. Without this document, in most cares parents do not have the legal right to do this. Having a signed health care proxy document in place allows you to continue to be involved in your child’s health care decisions.
Understanding the rules around HIPAA authorization
The Health Insurance Portability and Accountability Act of 1996, or HIPAA, protects the privacy of an individual’s health care information. Essentially, this law ensures that an individual’s health information is not disclosed to anyone except when permission is granted by that individual (this is a very broad and general understanding). This means that, unless your adult child gives written permission, healthcare professionals are legally prevented from giving any information to you regarding your child’s health.
But if your child gives you permission, you will be able to access their information. According to the Department of Health and Human Services, your child must designate you as their “personal representative” on their HIPAA authorization form, legally naming you as someone who is authorized to have access to their health information. As a personal representative, you can also make health care decisions on your child’s behalf. For example, if your child is hospitalized after turning 18, being a “designated representative” will grant you access to medical updates regarding their status and progress. Without that designation, the doctors and medical staff may not be able to disclose any information to you regarding your child’s health.
Updated: In Texas, consider a Surrogate Decision Maker (SDM) agreement
Since 2015, there is another option available to families in Texas that offers an alternative to the proxy arrangement. Supported Decision Making (SDM) is a way for disabled people to get help managing their life and making decisions for themselves, without taking out their rights to make those decisions (vs. guardianship or proxy). The chosen supporter can help the disabled person understand their options and the potential consequences of their decisions, obtain information relevant to their decisions, and communicate their decisions to the appropriate person — but they cannot make decisions for the disabled person. This SDM option is available as long as the individual has not been declared incapacitated by a court of law. He or she can also appoint someone to make medical decisions with a Medical Power of Attorney document (which can be used alongside a SDM Agreement); this document only become effective if the individual is unable to make or articulate medical decisions for themselves, as certified in writing by a physician. (Click the link to learn more about Supported Decision Making in Texas.)
We don’t stop being parents when our children become adults. Even after your child turns 18, you can help them maintain and treat their mental health, and continue to support them. With documents like a healthcare proxy, a HIPAA designation as a personal representative, and/or an SDM agreement, you can help your child ease into the responsibilities of becoming an adult — without risking a step backwards.
If you are interested in learning about these and other options, contact a qualified legal professional who can walk you through these steps. It’s important to note that the information in this article is for informational purposes only and cannot replace legal advice from a qualified professional.