CORPORATE LAW & GOVERNANCE
Understanding Privacy Protections For Children Age 18 And Over
When a child turns 18, under Illinois law he or she is considered to be legally an adult. As an adult, the child is given privacy protections that restrict a parent’s access to the child’s medical, financial, and educational information. If you have a child who has attained age 18 or will do so shortly, and the child is a dependent or primarily supported by you, you should consider having certain documents prepared that will enable you to receive information concerning your child’s health care, financial, and education matters that you otherwise would not be permitted to obtain.
Consider the situation where Josie, a nineteen-year-old college student, was in a serious car accident and rushed to the hospital. When her mother inquires as to Josie’s prognosis, she is shocked to learn that she has a very limited right to know about her daughter’s condition and does not have the right to give direction for Josie’s care. This is the case even though Josie’s medical insurance and medical expenses are paid for by her mother and/or if Josie is a dependent. These privacy restrictions are imposed by the Health Insurance Portability and Accountability Act (HIPAA), which places a high value on the privacy of an adult’s medical records.
The solution is to have a Health Care Power of Attorney prepared for, and signed by, the child. The power of attorney is a legal document in which the child names an adult to serve as his or her health care “Agent.” The Agent is authorized to make health care decisions for the child and may be given the right to access the child’s medical records. Had Josie had an effective Health Care Power of Attorney naming her mother as her agent, the hospital and medical staff would have been permitted to provide her with information concerning Josie’s care.
Another circumstance where a young adult has certain privacy protections is with his or her financial matters. For example, if a child has a bank account in his or her own name, a parent is not entitled to obtain information or conduct any business on behalf of the child relative to that account. Frequently a child needs a parent’s assistance to pay bills, negotiate and sign contracts, loan agreements, file tax returns, access bank accounts, etc. The solution is to have a Property Power of Attorney prepared for, and signed by, the child that authorizes an adult Agent to conduct business on the child’s behalf.
Who should the child name as his or her agent? While often a parent is named, there may be circumstances where the child wishes to appoint an adult other than his or her parent, or does not want to authorize the parent to have access to medical information or financial information. In these circumstances, if the child is a dependent, the parent often can engage in some gentle negotiation to convince the child of the advisability of naming the parent as his or her agent.
If a child is college bound, there are additional laws that may restrict a parent’s ability to obtain the child’s educational records. The Family Educational Rights and Privacy Act (FERPA) protects the privacy of a student’s educational records. “Educational records” are written records directly related to a student that are maintained by an educational institution, and include a student’s grades, attendance, behavior, etc. Although the general rule is that a school cannot divulge a student’s educational records to anyone without the child’s consent, a major exception exists if the child is a dependent for federal income tax purposes; however, many schools require written confirmation that a child is, in fact, a dependent before they will release otherwise confidential information. In addition, some states have additional laws that apply to education and privacy, so it is important to understand the laws of the state where the child is attending school.
As families consider all the tasks necessary to plan for a child to reach young adulthood and attend college, conversations should be had between parent and child addressing the health, financial, and educational records privacy concerns. These discussions will help determine whether powers of attorney or other documents should be prepared to authorize a qualified adult to access the child’s otherwise protected information and/or to have the authority to make decisions on the child’s behalf.