You have no legal parental right to make medical and financial decisions for your 18-year-old.
Parents are used to signing all sorts of documents for their younger children — permission slips, liability waivers, medical releases. That shouldn’t end completely when a child reaches 18, becomes a legal adult, and heads off to college. Without having four vital documents in place, parents could find themselves blocked from being able to make crucial decisions for their child in an emergency situation.
- Say your newly minted college freshman becomes incapacitated by a medical emergency. The hospital won’t automatically contact you.
- If your pride-and-joy runs up a big unpaid credit card balance, or misses too many car-loan payments, you won’t automatically be notified that there’s a problem.
- Even if your college student’s university provided you with a Family Educational Rights and Privacy Act (FERPA) waiver, it only gives you access to, and the right to discuss, your child’s grades. That’s no help in the event of an emergency.
As soon as your child turns 18, make sure you get these four documents prepared:
- HIPAA authorization form
- Health care proxy/power of attorney
- Living will
- General durable power of attorney
Here is a brief overview of each document and its purpose:
HIPAA Authorization Form
HIPAA (pronounced hip-uh) is an acronym that stands for Health Insurance Portability and Accountability Act of 1996. It’s a federal law that protects private health data.
By signing a HIPAA authorization form and naming you as an authorized party, your 18+ year-old provides legal permission for you to request and receive information from health care providers (such as ER doctors or nurses) about his or her medical status, progress and treatment following an accident or illness.
Health Care Proxy/Power of Attorney
One of the most important questions health care providers face when caring for an unconscious patient is: “Who can make medical decisions for this person?” A health care proxy/power of attorney document answers that question. Whoever it names as the patient’s “medical agent” has the ability to view his or her medical records and make informed medical decisions on his or her behalf.
Without a health care proxy, a patient’s diagnosis and treatment is entirely in the hands of health care providers. Their duty is to keep the patient alive using whatever means they deem medically appropriate.
If your adult child named you as his or her proxy (i.e., representative) in a health care power of attorney document, you have the legal authority to decide — if your son or daughter is unconscious — which courses of treatment doctors may or may not pursue, typically in accordance with his or her living will.
Living Will
Unlike a last will and testament (which details a person’s post-death instructions), a living will — sometimes referred to as an advance directive — explains what care a person wants if alive but unconscious.
It’s a horrible thing to contemplate, but in the event of a catastrophic accident or terminal illness that leaves your adult child incapacitated or in a permanent vegetative state, the living will explicitly tells medical providers how far to go in providing care. Does your son or daughter want to be kept on life support? What about CPR, tube feeding, pain medication and other care specifics? A living will/advance directive saves everyone from guessing.
General Durable Power of Attorney
Everyone matures at a different rate. Your 18-year-old might be plenty ready to take on the annoying duties of adulthood, such as filing tax returns, managing their financial affairs, and handling legal matters when they arise. Or…not. A durable power of attorney gives you the legal capacity to handle those tasks for them.
Car registration renewal due? Interest-and-dividend 1099s available to download from an investment broker? A general durable power of attorney means you can do such things on your son’s or daughter’s behalf. Even if they can do all this on their own, they might need you to step in during, say, an overseas study year.
A word of warning: A general durable power of attorney should not be seen as license for the new 18-year-old to ignore the legal responsibilities that come with adulthood. Nor is it a tool for helicopter parents to treat their 18-year-old like a permanent child. Ideally, it is a safety net — and an opportunity to educate a new adult about financial and legal matters.
Simple Will
Extra Credit: A fifth document would be wise to add: a simple will. No one wants to think about worst-case scenarios for young people just getting started in college and in life. But an estate-planning attorney can easily include a will along with the above four must-have documents to provide clarity about your son’s or daughter’s wishes for what to do with their belongings and assets in the event of their passing.
These documents are especially important for adult children of divorced parents. The last thing anyone needs in an emergency is a tug-of-war between exes over who gets to make what decisions for their unconscious adult child.
Advance planning using the right documents can eliminate confusion while minimizing the potential for chaos and conflict — conditions that can afflict even the most stable of families who find themselves suddenly thrust into a crisis.
And for the nascent adult whose head is already spinning from the changes and challenges inherent in starting college, here’s a comforting fact: All of these documents are revocable and can be changed by you (through your attorney) as you go through life.
For more information, contact Jason Smolen.
About the Author
Jason Smolen
Jason Smolen is a founding principal of SmolenPlevy. Smolen’s knowledge of complex estate and business issues has drawn the attention of ABC News, USA Today, E! Online, Realty Times and the Bank of America Small Business Online Community. Mr. Smolen is a graduate of the City College of the City University of New York and the George Mason University School of Law. Smolen also serves as a board member of a local citizens association and recently co-authored an article titled Why You Should Think About Spousal Limited Access Trusts (SLATS).
