Your college-age child may still be your baby, but once he or she turns 18, the law says they’re an adult. That means they get to make their own decisions and suffer the consequences of their mistakes. It also means you’re not automatically contacted by the hospital or the credit card company if they run into trouble, and you no longer have the right to make legal and medical decisions on their behalf.
Your child’s college or university might provide you with a Family Educational Rights and Privacy Act (FERPA) waiver. While helpful, a FERPA waiver only gives you access to, and the right to discuss, your child’s grades. What you really need are legal documents more often associated with senior citizens than seniors in school: a living will, HIPAA authorization form, health care proxy and a general durable power of attorney.
These documents aren’t just used for estate planning. Together, they serve as a vital safety net now that your child is legally an adult and away from home. These documents will give you the authority as a parent to make health care decisions or manage money for your child after he or she hits the age of 18.
Here’s an overview of the four key documents you will need.
This document has an unfortunate name. It differs from a last will and testament, which details your wishes and instructions after you die. A living will, also sometimes called an advance directive, explains the care you want — or don’t want — when you’re still alive but unconscious. So, if your son or daughter, heaven forbid, falls into a permanent vegetative state due to, for example, a terminal illness or accident, the living will makes explicit whether he or she wants to be kept on life support. It also lays out whether he or she wants, say, tube feeding, pain medication and other care specifics. The living will saves you and your adult child’s health care providers from guessing what he or she would want.
HIPAA Authorization Form
Without a HIPAA authorization form, your child could be stuck in the emergency room after an accident, and you may be unable to find out their condition. HIPAA, the Health Insurance Portability and Accountability Act of 1996, is a federal law that safeguards who can access an adult’s private health data. A HIPAA authorization, signed by your adult child and naming you as an authorized party, will give you the ability to ask for and receive information from health care providers about his or her health status, progress and treatment.
Health Care Proxy
Say your child is unconscious in the hospital. A health care power of attorney document naming you as their “medical agent” gives you the ability to view his or her medical records and make informed medical decisions on his or her behalf. Without a health care proxy, your child’s diagnosis and treatment will be left in the hands of health care providers. While this might not sound like a terrible thing, no one knows your child's health history and preferences better than you. A health care proxy gives you the right to participate in medical decision making.
General Durable Power of Attorney
A durable power of attorney grants you the authority to sign documents on behalf of your child to handle any financial or legal matters. The signed form gives you authority to take care of tasks such as: renewing his or her car registration, managing financial accounts held in their name or filing a tax return on their behalf. A power of attorney can be especially helpful if your child goes overseas to study or for a gap year.
What’s at Stake
These documents are meant to prevent the confusion and chaos that so often accompany tragedies. Even after all my years as a lawyer, I’m still shocked sometimes by accounts in the media — and by situations that occasionally arise among my own clients — of family conflicts that could have been avoided by proper planning.
Family members have actually resorted to litigation over terminating life support for an individual who does not have a living will. I’ve worked with parents who needed to petition the court to become guardian and conservator for their disabled child in order to apply for government programs, such as Medicaid and SSDI. And I’ve seen situations where children have been in accidents and their parents were unable to receive information about their health status, which resulted in a great deal of anxiety for them until things got sorted out.
The medical power of attorney is also very helpful to parents who need to receive information regarding a son’s or daughter’s mental health issues and treatment. Let’s say your son started to seriously struggle with the workload in his first year of college, started falling behind, started becoming dangerously despondent. The story doesn’t have a happy ending (you can read about it in this New York Times article (opens in new tab)), but it’s full of difficult lessons about the tension between privacy and accountability.
Annoyingly, front-line employees of some institutions, like banks and hospitals, are trained to challenge the authority of some documents due to a fear of liability. Your attorney can engage that institution’s legal department and, if necessary, provide a legal opinion regarding the validity of the document and the statutory basis requiring the institution to honor it. I find that the institution usually then complies.
These four documents are vital, because life can get messy. But if you’re nervous about setting anything in stone — fearing that life circumstances for you or your adult children might change — don’t worry. They’re all revocable.
Foster Friedman concentrates on planning and controversy matters involving estates and trusts. He has extensive experience advising clients on the transfer of wealth from one generation to another, including the orderly and tax-efficient succession of family-owned businesses, through the preparation and implementation of wills, trusts, family limited partnerships and LLCs.
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