Every year at this time, many anxious parents are helping their high school graduates gather items they need to take with them to college. Families print off supply lists, visit big box stores and dutifully prepare their children for a new life away from home. What they don’t realize, however, is that they may be forgetting the most important detail of all.
If your child has reached this point, you may likely feel as though you are losing control of his or her life. Unfortunately, this is legally true once your child reaches the age of 18 because the state considers that child to be an adult with the legal right to govern his or her own life.
Up until the time your child reaches the age of 18, you are absolutely entitled to access your child’s medical records and to make decisions regarding the course of his or her treatment. Additionally, your child’s financial affairs are your financial affairs. This changes once your child reaches the age of 18 because your now-adult child is legally entitled to his or her privacy. You no longer have the same level of access to or authority over his or her financial, educational and medical information. As long as all is well, this can be fine. However, it’s important to plan for the unexpected and for your child to set up an estate plan that at least includes the following three crucial components:
1. Durable Health Care Power of Attorney
Under the Health Insurance Portability and Accountability Act, or HIPAA, once your child turns 18, his or her health records are now between that child and his or her health care provider. The HIPAA laws prevent you from even getting medical updates in the event your child is unable to communicate his or her wishes to have you involved. Without a HIPAA release and Durable Medical Power of Attorney, you may have many obstacles to overcome before receiving critically needed information, including whether your adult child has even been admitted to a particular medical facility.
Should your child suffer a medical crisis resulting in his or her inability to communicate for him/herself, doctors and other medical professionals may refuse to speak with you and allow you to make medical decisions for your child. You may be forced to hire an attorney to petition to have you appointed as your child’s legal guardian by a court. At this time of crisis, your primary concern is to ensure your child is taken care of. You do not need the additional burden of court proceedings and associated legal costs. A Durable Health Care Power of Attorney will remedy this problem and enable your child to designate you or another trusted person to make medical decisions in the event he or she is unable to convey his or her wishes.
2. Durable Financial Power of Attorney
Like medical information, your 18-year-old child’s finances are also private. If your child becomes incapacitated, without a Durable Financial Power of Attorney you cannot access his or her bank accounts or credit cards to make sure bills are being paid. If you needed to access financial accounts in order to manage or resolve any problem, you may be forced to seek the court’s appointment as conservator of your child.
Absent a crisis, a Durable Financial Power of Attorney can also be helpful in issues that may arise when your child is away at college or traveling. For example, if your child is traveling and an issue comes up where he/she cannot access his or her accounts, a Durable Financial Power of Attorney would give you or another trusted person the authority to manage the issue. An alternative may be to encourage your child to consider a joint account with you. However, this is rarely recommended because of the unintended consequences for taxes, financial aid applications, creditor issues, etc.
Your child owns any funds given to him or her as a minor or that he/she may have earned. In the catastrophic event that your child predeceases you, these assets may have to be probated and will pass to your child’s heirs at law, which in most states would be the parents. If you have created an estate plan that reduces your estate for estate tax or asset protection purposes, the receipt of those assets could frustrate your estate planning goals. In addition, your child may wish to leave some tangible property and financial assets to other family members or to charity.
While a will may be far less important then the Durable Health Care Power of Attorney and Durable Financial Power of Attorney, ensuring that your child has all three components of an estate plan in place can prevent you, as a parent, from having to go to court to obtain legal authority to make time-sensitive medical or financial decisions for your child.
If you have a child (or grandchild) who is approaching adulthood or leaving for college, talk to the experienced attorneys at Zacharia Brown about having the child execute these crucial documents. It is one of the most important preparations you can make as your young adult heads off to school. You may schedule an appointment by visiting our website at PittsburghElderLaw.com or by calling 724.942.6200.