With college-aged students currently studying in the fall semester, or perhaps going back to school in January, attorney Samuel B. Ledwitz wants you to ask yourself if you prepared if the unthinkable happens to your child.
“What happens if they get sick and they go to the hospital?” said Ledwitz, founding partner of estate planning law firm Bezaire, Ledwitz and Associates. “You’re the parent. How can you help your kid if they find themselves in that situation?”
Ledwitz said there are two angles from which to approach the situation, and both need prior planning since your child will be an adult.
“We’re going to look at it from a health point of view, and also from a financial point of view,” he said. “They might have bills that need paying. They might have banks that need to be contacted, lenders that need to be talked to. If they’re 18 and above, the law recognizes them as adults with their own legal rights.”
Ledwitz said there is a common scenario he sees parents encounter, with the first hurdle being overcoming the privacy issues set up by the Health Insurance Portability and Accountability Act of 1996.
“Let’s say your kid gets sick and gets admitted to the hospital,” Ledwitz said. “You call the hospital up and ask what is going on with my son or daughter. That hospital under HIPAA can’t tell you anything. Your kid is in a moment of need, maybe on a respirator or something or they’re unconscious. You need to be able to make a quick decision and you’re not able to. How do we make it so you can act? There are a variety of documents and tools that we need to put together. It’s kind of like we need a toolbox.”
So, what should be done to ensure you can have access to the medical professionals who are treating your child?
“We obviously need what’s called a HIPAA waiver, and one that’s California Medical Information Act compliant,” said Ledwitz, referring to CMIA, the state of California version of HIPAA. “It allows the child to authorize legally that you are able to talk to the hospital -- the doctors, the nurses -- and get the medical information you will need to make the right decisions.”
Ledwitz added the HIPAA waiver meets a few different needs.
“It will help you in other ways,” he said. “Is my child even in your hospital? Is my child sick? Should we approve the blood transfusion? Should we go with the MRI? Do we move our child from this hospital to that hospital? It allows you to get that extra care because you can talk to the medical professionals at that hospital.”
What can happen if there is no HIPAA waiver in place, but my child is truly sick or injured? It will end up costing plenty of money and time to overcome the problem, Ledwitz said.
“If we don’t have documents in place, we might have to go to court and file what is called a conservatorship,” he said. “At minimum that’s $5,000, and could take days or weeks in court, if not longer. And remember, this is time critical. This is where we need to make a decision immediately. So, no, you don’t want to go that route.”
A second document that is necessary is an advance healthcare directive, Ledwitz said.
“This where your child has spelled out what he wants you to do in the case he is incapacitated, or regrettably, passes away,” he said. “What can we do? What has he or she authorized? Does he want pain medication? Does he want life prolonged at all costs? Yes, they are very touchy subjects, but they are things you should go over.”
And a third necessary document is a durable power of attorney for financial matters. This makes sure your child’s bills get paid while he or she is sick, Ledwitz said.
“If your kid is incapacitated and now you have bank accounts you have to access or talk to the school’s finance committee, how do you legally have the right to talk to those financial entities on behalf of your kid?” he said. “In this document, the kid would nominate someone the child would want to take care of their finances while they couldn’t.”
And if you don’t have these documents, you do not have the legal right to make decisions for your child, Ledwitz, said, which would cause untold grief.
“If you don’t have these things, the hospital can actually turn you -- the parent -- away,” he said. “You have an 18-year-old who is an adult. And the penalties for violating HIPAA and CMIA are hundreds of thousands of dollars. Hospitals are just not going to go against these laws.”
Now, let’s say you have the documents, but, naturally, they are not in your child’s wallet when they get to the hospital. Ledwitz said it often happens that hospital personnel doesn’t even know to look for these documents, adding there is a solution.
“Unless you have a service that will call the parents, you still have a problem even though you have the documents,” he said. “But there is a health card you can get that would be in your child’s wallet that hospital personnel could find and activate, which would alert you that there is some medical problem with your kid. If this were to happen, it would be nice to be able to talk on your child’s behalf to hospital personnel on the ride over as opposed to finding out five or 10 days later. It makes a difference. Time is critical in these situations.”
These scenarios happen more than you think and it’s not just COVID-19 causing the problem, Ledwitz said, adding that meningitis is a disease that routinely makes its rounds through college campuses.
"In the news, we’re always seeing a disease that takes on college kids,” he said. “Whenever you have a large population in a tight grouping, whether it’s classrooms or dormitories, there are illnesses that annually occur. It could just be a bad flu. It could be an accident. Kids are always more prone to doing things that are more dangerous than adults.”
And how much will all this cost? Ledwitz said it really only runs between $400 and $500 for a professional to draw up the documents.
For more information, call the law firm of Bezaire, Ledwitz and Associates, APC at (626) 398-0100.