It’s that busy time of year when high school seniors are taking the SAT, going to prom, and trying to stay focused on finishing the school year with energy. Not to mention the college bound students that are researching which college best matches their future goal, making college campus visits, and completing the daunting task of sending college applications. This busy time has hit close to home – my oldest son is an 18-year-old senior finishing his last semester in high school. We are like many families with so many other things calling for our attention at this time, but how many parents of young adults consider estate planning for their children? Even for the high school graduate who has nothing, planning for health emergencies is critical.
Unfortunately, most parents don’t consider estate planning for their young adult because typically they only correlate estate planning with wealth and forget about the health care directive aspect of estate planning. Since most 18-year-olds don’t have much when it comes to wealth, the most important planning parents can encourage their young adult to do, is making it possible for the parents to be able to make medical decisions in an emergency or be able to talk to the doctors about the young adult’s medical condition. Proper estate planning is not only about deciding who gets what when death occurs, but is also about end of life decisions and who will make medical decisions during incapacity.
Most parents think that if they are paying for their child’s college education or if the child lives under their roof, then they have the legal right to make the child’s decisions. For most states, the age of majority is 18. At this age the legal system considers the 18-year-old as an adult for making his own medical and financial decisions. Upon a child attaining the age of 18, a parent can no longer make financial or medical decisions for the child, or have access to the child’s medical records without the child’s consent.
A few months ago, I received a telephone call from the parents of a 19-year-old young adult who was involved in a car accident. The 19-year-old was rushed to the hospital where she remained unconscious. Initially, her parents were unable to secure basic information about her medical condition, but fortunately, a few days later the young woman regained consciousness and gave her doctors permission to speak with her parents.
This was not the case for another client whose 20-year-old son was in a coma for three weeks. His parents had to petition the court to become his legal guardian in order to obtain medical information and make his health care decisions – a proceeding that cost thousands of dollars.
At a minimum, young adults should nominate a health care agent through a health care power of attorney to make medical decisions on their behalf should they be unable to do so. The agent is a trusted individual, typically the parents or other close family members. This agent would have the authority to communicate with the young adult’s doctors and make any decisions on behalf of the young adult.
In order for the health care agent to have full access to medical records and any other communication/information, a release which complies with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) which protects patient privacy is necessary. The health care agent(s) are listed on the HIPAA document, along with any other individuals whom the young adult wishes to have access to his or her medical information.
Another important document is a living will, which designates end of life choices you wish to be carried out should you become terminally ill or in a persistent vegetative state. We can all remember the much publicized court battle years ago in the infamous case of Terri Schiavo who didn’t have a living will. This case was the pivotal turning point that emphasized the importance of having a living will and declaring your intentions of whether to be kept alive on artificial life support or not.
Good news – today there are many medical advances that are keeping us alive longer, however, some of us may be living longer with conditions such as dementia or Alzheimer’s. It’s important to have a mental health care power of attorney, which will enable your agent to admit you to the appropriate care facility if the need arises. This power is often necessary to avoid a court order for admittance into one of these facilities.
Although most 18-year-olds don’t have much in terms of wealth, it is important for all young adults to have a general durable financial power of attorney to allow their agent, typically their parents, to have immediate access to bank accounts, pay bills, replace a lost debit card, etc. There are two types of general durable powers of attorney, immediate and springing. A springing power of attorney only allows the agent to access a financial account if the principal is deemed incapacitated first. Having the general durable financial power be immediate allows the agent to act on behalf of the principal as soon as the document is executed. The agent does not need to wait for incapacity to occur before it can act on behalf of the principal. An immediate durable power of attorney can be especially useful if the child is away at college as it allows the parent to manage the child’s financial affairs should something happen to the child.
Planning to graduate from high school and making college plans is an exciting time in our children’s lives. If you have a young adult at home or one getting ready to leave home, it is important that you as parents have the legal authority to make your young adult’s medical and financial decisions should they be unable to do so. A basic estate plan consisting of a durable financial power of attorney, living will, health care power of attorney, mental health care power of attorney and HIPAA release form would grant this legal authority. Don’t be shy; spread the word to others you know with young adults that the best 18th birthday present that you can give is a basic estate plan. I know I did!
For more information visit, http://www.morristrust.com