Incapacity
planning is not only for middle-aged and senior citizens.  It is also relevant to young adults.  Once a child turns age eighteen (18) he or
she becomes an adult under California law.
Important legal consequences follow which are often overlooked at the
time.  Only later on, should the person
suffer an incapacity, are the legal significances appreciated.  That is when the incapacitated urgently needs
their family’s assistance.  Often, however,
the family encounters unanticipated legal hurdles which drastically complicate an
already difficult situation.  

 

By timely
planning ahead, however, necessary legal authority can be in place to authorize
a responsible person to take charge.  Let
us discuss such incapacity planning from the perspective of the health and
financial issues at stake.

 

          HIPPA prevents disclosure of health care information to the
family of a young adult.  The treating
physicians cannot freely discuss the particulars of the young adult’s condition
with family members.  Even the parent of
a young adult is unable to obtain this information. 

 

          Naturally, this is very distressing to the family.  To overcome this legal obstacle it is
necessary for the young adult, while competent, to sign a timely HIPPA
waiver.  Physicians can then disclose
confidential information to those persons named in the HIPAA waiver.  HIPPA waiver forms can be obtained by going
to medical clinics, doctors’ offices, law offices, and hospitals.

 

How
will health care decisions be made on behalf of an incapacitated young adult?
Again, without legal authorization, the family may not automatically make
health care decisions.  Unless an advance
health care directive (“AHCD”), or durable power of attorney for health care, is
already in place the family will need to petition the court for a
conservatorship of the person in order to control the person’s long term care
and placement. 

 

Conservatorships
are expensive, involved and burdensome and are a last resort preferably to be
avoided if possible.  That is why it is
in a young adult’s best interest to appoint a health care agent to make health
care decisions when he or she can no longer make them.   

 

AHCD’s
come in various forms.  The AHCD forms can
state what treatment the person wants and does not want to be done on his or
her behalf.  California has a Uniform
Statutory Advance Health Care Directive; the California Medical Association (“CMA”)
has its own AHCD form; and a wide variety of attorney drafted AHCD’s exist.  The CMA’s AHCD form can be obtained by going
online and purchasing it. 

 

  

Next,
financial and asset issues will arise during the incapacity period that could
be controlled by an agent acting under an executed Durable Power of Attorney (“DPA”).  For example, perhaps the incapacitated
person’s resources need to be transferred out of his or her name and into a
special needs trust established by a parent; in order to qualify the
incapacitated person for Medi-Cal needed that will pay for health care
expenses. 

 

Without
a previously executed DPA in place, this may be outside of the family’s legal control.  A conservatorship of the person’s estate may
become necessary. 

 

A
DPA granting complete authority may be just what is needed to cover a wide
variety of unforeseen circumstances in a cost effective manner.  California has a statutory DPA form that may
be inexpensively purchased at a stationary store which sells legal forms.  Naturally this presumes that the person’s
affairs are uncomplicated and that the least expensive solution is sufficient;
otherwise, consult an attorney.

 

          Events leading to incapacity can come on suddenly and
unexpectedly.  Young persons who engage
in risky behavior — including alcoholism, harmful and addictive drug use,
criminal activities, and reckless driving — are particularly vulnerable.  Planning in advance by means of the AHCD and
DPA is clearly much less costly and burdensome than experiencing a subsequent conservatorship
that is both unplanned and urgently needed.