Estate Planning Documents Your 18 Year Old Should Have

What is a parent to do when the college nurse refuses to answer questions about her sick child because the college infirmary does not have written permission to communicate with the parent?

Your teenager depends on you for food, shelter, clothing and education. However, on your teen’s 18th birthday, he legally becomes an adult who is now able to make medical and financial decisions for himself. You can no longer legally make these decisions for your 18 year old.

There are legal documents that adult teenagers can execute that will give parents the authority to access their private medical and financial information, make medical decisions or handle financial matters. These documents are governed by state law and vary from state to state. You should consult a local attorney to be sure you are getting the appropriate document. The medical directives may include a Living Will and the appointment of a Health Care Representative or a Health Care Proxy. These documents can be very helpful if your adult child is hospitalized while away at school. Financial Powers of Attorney appoint agents to manage financial matters.

Medical Directives
It is a parent’s worst nightmare to have a child in a medical crisis. This crisis can be exacerbated if the parents are foreclosed from access to information about their child’s health and prevented from making crucial medical decisions for a critically injured or ill child. If there are no medical directives (Living Will and a Health Care Representative/Proxy) in place, then Court intervention is required to authorize the parents to make the necessary medical decisions. This would bring unnecessary delays, costs and legal fees. Having medical directives in place can convert a spiraling crisis into a managed medical matter.

A Health Care Representative or Proxy does not have authority to make medical decisions for you unless your treating physician determines that you are unable to understand and appreciate the nature and consequences of health care decisions and to reach and communicate an informed decision regarding medical treatment. This does not have to be a permanent incapacity. Once you regain your capacity, the Health Care Representative or Proxy authority is removed (until when or if it becomes necessary again).

It is also important to have the authority to gain access to confidential medical information. The Health Insurance Portability and Accountability Act (commonly referred to as HIPPA) is a federal law that provides that a patient’s confidential medical information cannot be disclosed to anyone, regardless of relation, unless there is a prior written authorization. Your medical directives should provide that your Health Care Representative or Proxy has this authorization to access your confidential medical information, even if you have capacity. So, if your child gets sick while away at college, you would have access to the child’s medical records, but you couldn’t make medical decisions for her, unless she was incapacitated.

Financial Powers of Attorney
Powers of Attorney are very useful documents in times of crisis and also in times of calm. Parents can be named as their child’s agent to handle a myriad of transactions. Examples of the transactions include managing bank and investment accounts, dealing with claims and litigation, dealing with government benefits (i.e., Medicaid), and managing digital assets.

Under a Durable Power of Attorney, the agent has authority to manage the principal’s affairs. This authority exists whether the principal lacks capacity or has capacity. It is important to seek the advice of legal counsel to make sure the Power of Attorney includes the appropriate authority for the parents’ and child’s circumstances.

It is important to note that the authority granted under a New York or a Connecticut Power of Attorney specifically excludes the authority to make medical decisions. Accordingly, it is not enough to have only a Power of Attorney. Having your child implement medical and financial Advanced Directives will cover all the potential areas in which your child will need your decision making authority.

If you have any questions or want to discuss how to establish these documents with Diserio Martin, please contact one of our Trusts and Estates Attorneys about our College Package:
David L. Dufort ddufort@dmoc.com
Barbara S. Koteen bkoteen@dmoc.com
Kristina E. Kelly kkelly@dmoc.com