ESTATE PLANNING FOR FAMILIES WITH YOUNG CHILDREN
By: Sarah Lane
(4/13/03)

Modern estate planning involves much more than just a Will or Trust, although these may be the first tools you think of when you think about beginning your estate plan. Today a truly comprehensive estate plan addresses contingencies that can occur during your lifetime, as well as upon your death. There are now tools that govern who can take particular actions or make decisions for you and when they become empowered to do so, such as in the event of your incapacity, by way of a Durable Power of Attorney or Advance Directive for Health Care. These instruments have been discussed at length by Jerry Shiles in prior articles.

Another consideration is who should be authorized to make decisions for your children. By your Will, you may appoint a guardian to care for your child in the event of your death, and by a Power of Attorney you may specify who may care for your child in the event of your disability. However, neither of these instruments state who can seek medical treatment for your child in your temporary absence. Because you may not always be there when your child is in need, be sure you authorize someone you trust to approve medical treatment for your child. You can do this by executing an Authorization for Medical Treatment to a Minor Child.

Under the laws of the State of Oklahoma, a physician or dentist may not examine or treat a child without the express authorization of a child’s parent or a legal custodian appointed by the court. Additionally, a relative within a specified degree of relationship may also give authorization, but only if that relative has permanent custody of the child. There is a narrow exception for life threatening situations, which allows some examination and treatment. This exception is interpreted very narrowly by hospitals and physicians. Many contingencies could occur that are very painful but fall far short of being "life threatening." For example, a broken arm is very painful, but it is not life threatening, so a physician may be required by law to delay treatment to your child until a parent is located and can give proper authorization.

To complicate matters, the statute prohibits examination as well as treatment. Because the physician must not only withhold treatment, but also is prohibited from examining your child, a life threatening condition could be misinterpreted as less critical, which could yield tragic results.

Your doctor’s hands are truly tied in this situation. It doesn’t matter how much he or she wants to render aid to your child, in the absence of a life threatening condition the statute prohibits him from doing anything without your parental consent. The legal principle underlying this regulation is that informed consent is required in advance of rendering and receiving medical treatment. Informed consent is required because each individual has a fundamental right to maintain the privacy and integrity of his or her body and because of the potential risks involved any time you receive medical treatment.

Obtaining informed consent is a two step process. First, the doctor must inform the decision maker (you, if the treatment is for your child) of the nature and purpose of the procedure and of the probability of any associated risks. Second, the decision maker must grant consent. A minor lacks the capacity to give informed consent, so the parents or legal guardians are the only ones granted decision making privileges and responsibilities by law. However, the law permits the parent to share this authority. In a parent or guardian’s absence, the Authorization for Medical Treatment to a Minor Child grants another person the right to give consent for examination and treatment.

At a minimum, the form you use should provide the following information: your minor child’s full legal name and residence; the name and contact number of your child’s primary care physician; all current medication he or she is taking; any known allergies; the name, policy number and a contact number of your medical insurer; your full legal name and contact number for you, another parent or guardian; and the name and contact number of an additional person you would like contacted in an emergency. To aid the hospital, dentist or physician in relying on the form, I also recommend you have your signature notarized.

You may wish to place an expiration date on the form, so you can vary the duration of the authority depending on the situation. For example, if your child is going away to camp, you will want to give the camp director, a resident counselor or other representative the authority to seek medical treatment for your child during the time your child is attending the camp. If you have a neighbor, grandparent, other relative or babysitter with whom your child frequently stays, you might want to list the expiration date as the child’s eighteenth birthday or state that it is effective until revoked in writing.

By providing a form with the above listed information, you ensure your child can receive expeditious medical treatment in your absence. You will also be providing additional information about allergies, current prescriptions, insurance coverage and contact numbers for the child’s primary physician which could be critical in an emergency.

When used properly, the Authorization for Medical Treatment to a Minor Child can help you plan for family emergencies and assist you in safeguarding your children’s well being by enabling others to seek medical treatment for your child should the need arise.

To return to the Strategic Planning Articles click here.

Update

As a courtesy to our clients and their families, we have provided a form for Authorization for Medical Treatment to a Minor Child.  Please click below to proceed to the form.  A password is required to access this form.  Please call Brown & Associates, Attorneys & Counselors at Law, PLLC, at 580-234-6600.

Access Form Now

Please read the following disclaimer about this website.
Content ©2003 Brown & Associates, PLLC. All rights reserved.