With high school graduation coming up, many parents will soon watch their children become adults (at least in the eyes of the law) and leave home to pursue their education and career goals.
Turning 18, graduating high school, and moving out is a huge accomplishment. And it also comes with some serious responsibilities that probably aren’t at the forefront of their (or your) mind right now. Once your children become legal adults, many areas that were once under your control are now solely up to them.
Here’s the big one: Before they turned 18, you had access to their financial accounts and had the power to make all of their healthcare decisions. After they turn 18, however, you’re no longer able to do either.
Before your kids head out into the world, you should discuss and have them sign the following estate planning documents, so if they become incapacitated, you can easily access their medical records and financial accounts without having to go to court. Signing these documents will ensure that if they ever do need your help and guidance, you’ll have the legal authority to easily provide it.
Advance Health Care Directive
An Advance Health Care Directive allows your child to name an agent (like you), who has the power to make healthcare decisions for them if they’re incapacitated and cannot make such decisions for themselves. For example, this authority allows you to make medical decisions if your child is knocked unconscious in a car accident or falls into a coma due to an illness.
An Advance Health Care Directive also details how they want medical decisions made for them, not just who makes them. Your child may have certain wishes for their end-of-life care, so it’s important you discuss these decisions with them and have such provisions documented. For example, an Advance Health Care Directive allows the child to decide when and if they want life support removed if they ever require it. (Other states call this a “Living Will”) Since these are literally life-or-death decisions, you should document them in an Advance Health Care Directive to ensure they’re properly carried out.
That said, while an Advance Health Care Directive would give you authority to view your child’s medical records and make treatment decisions, that authority may only goes into effect if the child becomes incapacitated. This means that unless your child is incapacitated, you do not have the authority to view their medical records, which are considered private under HIPAA.
Passed in 1996, the “Health Insurance Portability and Accountability Act,” or HIPPA, requires health care providers and insurance companies to protect the privacy of a patient’s health records. Once your child becomes 18, no one—even parents—is legally authorized to access his or her medical records without prior written permission.
But this is easily remedied by having your child sign a HIPPA authorization that grants you the authority to access his or her medical records. This can be critical if you ever need to make informed decisions about your child’s medical care.
Durable Power of Attorney
In the event your child becomes incapacitated, you’ll also need a durable power of attorney to access his or her financial accounts. You’ll also need it to manage your child’s health care plan. I recently talked to a family whose 26 year old son was in a bad motorcycle accident. He was between jobs, no medical insurance, and too old to be on his parent’s plan. All his parents wanted to do was get him on a good insurance plan right away, but without a Durable Power of Attorney, they were reduced to looking at filing a conservatorship action, a lengthy and expensive process.
While medical power of attorney will authorize you to make healthcare-related decisions on their behalf, durable power of attorney will give you the authority to manage their financial and legal matters, such as paying bills, applying for Social Security benefits, and/or managing banking and other financial accounts.
If your child is getting ready to leave the nest to attend college or pursue some other life goal, you can trust us as your Personal Family Lawyer® to help your child articulate and legally protect their healthcare and end-of-life wishes. With us in your corner, you’ll have peace of mind that your child will be well taken care of in the event of an unforeseen accident or illness.