Your child gains many legal rights when he turns 18… and you lose some. Your child gains sole authority over his medical, legal and financial decisions. You lose the right to make his decisions and to access his privileged information.
As Spiderman says, With great power comes great responsibility. Now that your adult child has the power to manage his own affairs, he, like every adult, needs a plan to prepare for a situation when he may not be able to do so. He needs to authorize someone who can step into his shoes if the situation demands it. For the typical 18-year-old, the natural choice for that authority is Mom and Dad.
Without such a plan, what might happen? If he becomes incapacitated – even temporarily, in an accident or by illness, for example – you may not be able to step in to help him. If he’s hospitalized, the hospital may not release any information to you, let alone allow you to make health care decisions for him. You will not be able to pay his bills with his assets. You will not be able to manage any aspect of his financial life, even dealing with his insurance carrier. The situation could even require that you petition the court to gain official legal guardianship over your child!
Your Child Is The Client
Our attorneys recommend that parents discuss these issues with their newly minted adult, and encourage their child to come see us to get a plan up and running. That said, we emphasize that you cannot create and sign your child’s documents. It’s his decision, his plan, his documents. Now that he has attained legal majority status, he’s the client, not you.
Now let’s address the documents that every adult – including your newly minted adult at age 18 – needs in his legal toolbox.
Healthcare Power of Attorney
A health care surrogate or health care power of attorney allows your child to appoint someone to make his health care decisions if he cannot. This situation need not be permanent incapacity – for example, it could be while he is in surgery and a health care decision needs to be made instantly. The document should also contain a HIPAA waiver that will allow health care providers to share privileged medical information with you.
Read more about health care surrogate and other advance directives.
Durable Power of Attorney
This is the document that allows you to deal with your child’s financial affairs if the occasion ever arises when he is unable to do so. For example, let’s say your child has been in a car accident, is hospitalized for a few weeks, and needs assistance. With a properly drafted durable power of attorney, you can access his bank account to make sure bills are being paid, student loans handled, tax returns filed and signed, and can communicate with the auto insurance company regarding the accident, etc. Using his Durable Power of Attorney that appoints you his agent, you would be able to sign him into a hospital and incur no personal financial liability. You could also hire an attorney to sue the other party in your child’s accident case, on your child’s behalf.
Learn more about the durable power of attorney
Last Will & Testament
Hopefully this will not be needed. But things happen. Even if your child has no assets now, he may if he passes away. For example, if an accident results in a personal injury settlement, settlement money will flow into his estate. By intestacy laws, that money will go to his heirs at law, his parents. But suppose the child’s mother or father has never had anything to do with the child? Suppose one of the parents is a drug addict? Chances are your child would not want those monies to flow to that parent. With a well-crafted last will and testament, your child can name who he wants as his beneficiaries.
FERPA – for students off to college
FERPA stands for the Family Education Rights and Privacy Act. Under federal law, a student’s school and university records must be kept confidential if the school receives federal funds, as most do. However, schools have different rules for how that privacy is enforced, and parents can be granted access to school information, including if emergencies arise, under certain conditions. If your 18-year-old is off to college, we recommend you check out the school’s FERPA policies. Those policies should be available on the school’s website.
It’s a game-changer when your child turns 18! Putting these plans in place can give you and your child peace of mind. Contact the Karp Law Firm for an appointment at 561-625-1100.
