As Your Young Adults Leave for College, Add a Power of Attorney and Health Care Directive to the Packing List
The fall is upon us: is your new or soon-to-be adult (child) going off to college? Besides taking with him or her the extra long sheets and a new credit card, should your child be leaving you with something too: the right to control his or her finances and medical decisions?
When a child reaches the long-awaited age of 18, everything changes and nothing changes at the same time. Suddenly, your child is a legal adult, yet the child still depends on you for financial and emotional support. Legally, the rules have changed. The former legal minor is an adult, who is expected to make financial and medical decisions on his or her own behalf and you, as the parent for the last 18 years, can no longer make those decisions for him or her.
In fact, you are now not even legally required, or allowed, to be notified if your child is in the hospital emergency room, without the child’s consent. You cannot generally make medical decisions for your child even if your child is not able to make those decisions for himself or herself, without the child’s consent. And, what if the child suddenly becomes incapacitated and cannot give consent for you to assist in making those decisions? You still cannot make decisions for your child without a legal document giving you this permission (even if you will ultimately pick up the bill). Your child needs a health care directive, which authorizes parents to obtain medical information and make medical decisions for the child if the child is unable to make such decisions for himself or herself.
What about his or her finances? The same is true. Now the child has the right to sign a contract, such as for a credit card, but you have no right to file for disability benefits on his or her behalf in case of an accident, to file a legal complaint or complete more mundane tasks, such as renew a car registration on his or her behalf.
While in some states the closest living relatives—parents if the child is unmarried—will be allowed to make medical and financial decisions on behalf of a child over 18 without official papers, this is not guaranteed and instead the parents may have to seek guardianship in court. A health care directive and/or a power of attorney grants and delineates the parent’s authority to act on behalf of the adult child, and obviates the need to resort to extreme measures, such as guardianship proceedings.
The health care designation should also include a living will. A living will outlines an individual’s advance care directive about life-sustaining medical treatment, and can also cover organ donations. Since parents and children may disagree on this topic, and parents understandably struggle to make the decision in such a dire situation, it should be discussed in advance and memorialized in a living will. The health care directive will also include a Health Insurance Portability and Accountability Act (HIPAA) release allowing disclosure of sensitive medical information to parents in the event of a medical emergency.
Both the power of attorney and the health care directive can be tailored to each family’s particular situation. For example, parents can be granted access to private medical records while the child is competent as well as in an emergency, or full financial power at all times (in a “durable” power of attorney) or only in the event of the child’s incapacity, or, while the child is competent, only over certain types and sizes of accounts and contracts.
This fall, as your children leave for college and become adults, power of attorney and health care directive/ living will documents should be on their college packing lists, ensuring their well-being and your peace of mind.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.