Even though you are a parent, once your child turns 18, you no longer have access to their medical records and lose the ability to direct their care in any meaningful way. You also have no rights to their password-protected cell phones, computers, other electronic devices, and social media accounts.

Those limitations can cause confusion and heartache in times of crisis. A little forethought, however, can help you stay involved and care for your child if your child gets into serious medical trouble.

A medical emergency can occur anywhere — on the college campus, while studying abroad, or during spring break. Before your children leave home, create an emergency plan — one you hope to never need but will be glad to have in an emergency. The plan should include three legal documents: a family password plan, a contact list, and a clear understanding of your child’s wishes.

Action Steps That Can Help Provide Peace of Mind

Have a Password Plan

You should know how to access your child’s electronic devices and social media accounts in the event your child no longer can. Develop with family members a method to share passwords, user IDs, and other critical information. A family password plan lets you salvage memorable photos and key contacts that might otherwise be lost. We recommend families keep a log of those passwords and accounts with all necessary information and place it in a safe place where all family members can find it.

A word of caution is necessary here. It is a federal crime to “intentionally access… without authorization a facility through which an electronic communication service is provided” or to “intentionally exceed… an authorization to access that facility; and thereby obtain…, alter…, or prevent… authorized access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a).

Some states have laws that permit a fiduciary to access a user's digital accounts. An agent under a power of attorney is a fiduciary, so consider including a power to access your child's digital accounts in a power of attorney granted to you by your child (see below).

Review Terms of Service

The starting point for understanding access to your child's digital assets will be found in the Terms of Service Agreement (TOSA) that your child entered with the service or account provider. The TOSA is a contract between the account owner and the custodian of the digital asset or service provider. It governs the relationship among the account owner, the provider, and the digital assets held by the provider.

The TOSA may have rules regarding who can access your child's digital assets. It may (and likely does) prevent the sharing of passwords. It may allow the service provider to delete the account if there is unauthorized access. It may allow (or require) the service provider to delete the account after the owner has died. Some TOSAs allow the account owner to name a manager with authority to act should the owner not be able to manage the account or die. Unfortunately, each TOSA stands on its own and each provider will have its own rules. Further, TOSAs are constantly amended by the providers.

It is very important to understand each TOSA pertaining to your child's digital accounts and to name appropriate managers or other agents who can access the account if your child cannot.

Keep a List of Friends and Roommates

Privacy laws may prevent a college or university from sharing other students’ contact information with you. However, knowing how to get in touch with your child’s closest friends may be critical in the event of an emergency. We encourage parents to exchange contact information with their student’s friends and roommates.

Have a HIPAA Privacy Waiver

Review a Health Insurance Portability and Accountability Act (HIPAA) privacy waiver with your child and ask your child to sign it. This form permits healthcare providers to share information with you or include you in conversations about your child’s medical condition. A HIPAA privacy waiver is often included in a health care power of attorney (see below).

Start the Conversation

As difficult as it may be, have a frank discussion with your children about what they want if they unexpectedly pass away. For example, make sure you understand your young adult’s desires regarding organ donation, notwithstanding the option they may have selected on their driver’s license. We recommend parents have open and honest conversations about their children’s wishes once they become legal adults. Although organ donor status may be included on the front of a driver’s license, specific wishes about organ donation are often included in health care powers of attorney and living wills (see below).

Young Adults Should Have a Basic Estate Plan

Every adult, no matter the age, should have up-to-date health care documents and an up-to-date estate plan in place. Among other things, these plans can provide much needed direction during the emotional turmoil of a health crisis. Sadly, medical catastrophes can strike at any age, so even college students should prepare the following basic documents:

  • Last will and testament: Even college students may own assets or pets. A will can specify who will inherit these things in the unlikely event of their death.
  • Advanced healthcare directives: With a few simple forms, your children can state the medical treatment that they would want, or designate you to make medical decisions for them, if they cannot speak for themselves. Three types of advanced healthcare directives can help protect their wishes:
    • Healthcare power of attorney – Your child can give you (or another adult) the power to make medical decisions on their behalf if they become incapacitated. A health care power of attorney usually contains a HIPAA privacy waiver, which would allow the child’s health care provider to provide you with information regarding your child’s condition and treatment. Even if your child is not incapacitated, this document will allow you to be involved in your child’s care.
    • Living will – This document allows your child to approve or decline certain types of medical care, even if that choice has a fatal outcome. In most states, living wills only take effect in the event of terminal injury or illness. In such states your child would need both a health care power of attorney and a living will.
    • Do not resuscitate (DNR) order – This document tells medical personnel not to perform CPR if the patient goes into cardiac arrest or stops breathing.

Don’t Leave Important Decisions to Chance

Having a plan in place for your young adult who’s away from home can help provide peace of mind and a greater sense of control in case of an emergency, leaving as little to chance as possible.

These same planning steps also apply for an elderly parent or a grown sibling who has no significant other.

For more information, please consult your PNC Advisor or contact PNC Private Bank.