Protecting your High School Graduate or College Student
It's summer! For many parents, this is the first summer after their child has graduated high school and is now a legal adult. When an individual turns 18 years old, unless they lack mental capacity, they are responsible for making their own financial, legal, and medical decisions. This is a big deal to newly minted high school graduates who now have a new sense of power and freedom.
As we all know from Spider Man, with great power comes great responsibility. If something happens to you and you are unable to make your own decisions anymore, it's important to have done your own planning ahead of time. This applies even to our newly minted adults who may not have even left their childhood home yet.
In the event an 18 year old gets injured, is in an accident, or otherwise loses capacity, no one else is automatically given the right to make his or her decisions. Parents are not assumed to have the power or right over their children after they turn 18. It may well require court approval through a legal process called conservatorship to be granted the right to make your adult child's decisions.
The rest of this article will be written with our new 18 year old adults as the audience.
To protect yourself, it is wise to at least have two legal documents prepared:
- Durable Power of Attorney
This document designates who can make financial or legal decisions on your behalf. A power of attorney can either be effective immediately upon signature or be effective upon mental incapacitation (requiring either physician certification or a court order). This does give the person who you nominate the ability to sign off for you and that person is held to a fiduciary duty to make decisions in your best interest. They would be given legal authority to manage these affairs on your behalf.
- Advance Health Care Directive
This nominates who can make your medical decisions. There may not be a presumption of who is closest to you and the right person to make these choices. Similar to the Durable Power of Attorney, your Advance Health Care Directive can be effective immediately or upon mental incapacitation. The Advance Health Care Directive is important because it details your preferences in a variety of medical scenarios. You want to make sure those you nominated are aware of your wishes so there isn't any confusion in a stressful time. An Advance Health Care Directive further gives your agent the right to review your medical records through a HIPAA release so that they can make informed decisions. Patient privacy laws are very strict now so having a comprehensive document to address all these issues is extremely crucial.
There are many stories of parents finding out that their child who has recently left to college has gone to the hospital and the medical team will not reveal any information about the case due to patient privacy laws.
(Note: If you do have your own assets, accounts, or significant property, you may also want to consider having a will or a trust created so that should something happen to you, it is clear who you wanted your things to go to and in the case of a trust, your possessions will not have to go through the probate court process.)
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We generally do not expect anything to happen to 18 year olds, but when they have started college, entered the workforce, or otherwise become a legal adult, it's good to be prepared for the unexpected. Whether one's parents or other trusted family members are the best options to be your agent, it is good to discuss with an Estate Planning attorney what this planning does, how it can be useful, and what to consider.