By Alessandra Messineo Long, Esq.
A few months ago, I received a telephone call from my client, Kate. It was one of those calls that no attorney wants to receive. Her 19-year-old daughter’s college softball team was on its way back from a game when their bus was involved in an accident. Most of the team was fine, but her daughter, Ella, was injured and taken to the nearest emergency room. Ella wasn’t answering her phone so Kate called the hospital, but other than confirming that Ella was brought to the ER, they refused to give her any information. She hung up the phone and, in a daze, immediately got into the car for the three-hour drive to the hospital. When Kate arrived and asked to see her daughter, the clerk explained that Ella was in surgery. Wanting additional details, the clerk asked if she had a HIPAA release authorizing access to her daughter’s medical information. She did not. Despite pleading, the hospital refused to release any information, explaining that they were very sorry, but her daughter was over 18 and even though Kate is her mother, they could not tell her anything further.
Stunned and in disbelief, Kate sat down to wait. Then she called me and asked what I could do. As her attorney, could I call the hospital and convince them to give her the information? Gently, I explained that there really wasn’t anything I could do, at least not at that moment (realizing the emotional state she was in, I decided that was not the time to mention going to court if necessary). On the verge of tears, Kate said she remembered we had talked about drafting some documents for her daughter a couple of years ago when Ella was applying to colleges, but she was only 17 so it didn’t seem like a rush, and she meant to call me back to set up an appointment, but with everything going on – senior year, graduation, getting ready to go away to college – she never got around to it. I felt terrible for her, of course, especially because all I could offer were words of sympathy and suggest that we “just wait and see,” crossing my fingers that the surgery would be successful and her daughter would recover quickly.
The good news for Kate was that is exactly what happened: Ella’s surgery went well, she came around quickly and could communicate her medical condition with her parents, and recovered in time to return to her classes before the end of the semester. But not everyone is so lucky. How could it be worse? Consider some of these alternate outcomes for Kate and her daughter:
• Her daughter’s injuries are so severe that she ends up in a coma, and because she didn’t execute a HIPAA release or health care proxy naming Kate as her agent, not only is the hospital prohibited from sharing information, she is unable to participate in any decisions regarding Ella’s medical care.
• Even worse, her daughter is pronounced brain dead, but because Ella didn’t create a living will setting out her wishes in the worst-case scenario, Kate doesn’t know if her daughter wants to be kept alive on life support, or donate her organs, or even whether she wants to be buried or cremated, so unless Kate wants to endure a court proceeding, it is up to Ella’s doctors to determine her precious daughter’s fate.
• Ella is now in the ICU and can’t communicate, and Kate is guessing (because her doctors can’t share the details) that she is due for a long recovery. In the meantime, because Ella didn’t execute a durable power of attorney naming Kate as her agent, Kate has no authority to gain access to her daughter’s dorm room or mailbox, pay Ella’s credit card bill from an online bank since she doesn’t know the account details (so her credit rating may take a hit), or take care of any of Ella’s other academic or financial affairs.
I think we can agree that any of these scenarios is among every parent’s worst nightmares – it’s definitely among mine! To be honest, the odds are that none of them will come to pass. But do you REALLY want to take that chance, when three simple documents can ensure that should the worst happen, you are able to handle your child’s medical and personal affairs when she can’t? True, of all the things on the college to-do list, this one is not exactly fun. But just as you would be irresponsible as a parent not to create an estate plan for yourself to protect your minor children, I would argue that it is equally irresponsible not to be sure that your college student (or any child age 18 or older) has a basic estate plan in place to protect BOTH of you.
So, please do not let this fall to the bottom of your list, or worse, off of it altogether. Feel free to reach out to discuss. That way, you can check this off your list and enjoy summer, knowing that you will never have to call me from a hospital in a state of panic, saying “I know I should have done this, and I meant to call you . . .” As a lawyer, but especially as a mom, that is one call I don’t want any parent ever to have to make.
Warmly, Alessandra Messineo Long, Esq.
Alessandra is a local attorney and the Founder and Principal at her own firm, Law Offices of Alessandra M. Messineo Long, LLC. Alessandra practices in the areas of wills, trusts and estates, trust & estate administration and probate, business law, and non-profit organizations. Alessandra is admitted to practice in CT, NY, CA and DC. Alessandra can be reached at www.amlonglaw.com or aml@amlonglaw.com or by phone at 203-249-3601.
