How important are Health Care and Financial Powers of Attorney when a child turns 18 or goes to college?
What if something happens to an adult child while away from home or away at college? Accidents and unforeseen medical emergencies may occur. If the student is unable to consent to medical treatment who will make the necessary decisions? Who will be able to talk with doctors and receive the adult child’s protected health care information? Who will handle the student’s financial obligations if the student is unable to do so? A parent may generally assume that he or she will be able to make these decisions. However, the reality is that, once children turn 18, parents have no legal ability to control their children’s medical or financial decisions. Only the adult child can make those decisions. Further, unless the child has specific documents permitting it, the child’s doctors may not disclose to anyone, including parents, the child’s protected health care information, including a simple status update on the child’s medical condition.
As Consumer Reports warns, “Moms and dads who still think of themselves as protectors and advisers, even after their children become legal adults, often don’t consider the real-world implications of that milestone birthday. They and their young-adult children need to think about the unthinkable in advance.”
In the event that the child is unable to make health care or financial decisions, a court may be asked to appoint a guardian to act on the child’s behalf. A parent may be appointed as guardian, but the process still requires court intervention, significant amounts of time, and substantial financial costs. Nothing guarantees that a court would consent to a parent’s guardianship. While not the best case scenario, it is quite possible that a judge could decide that the child is better served by a state social worker, or by someone other than a parent acting as guardian.
All of these issues may be avoided by having an adult child execute Health Care and Financial Powers of Attorney in favor of a parent. A Health Care Power of Attorney will permit the parent to make medical decisions for the adult child if the child is unable to do so. A Health Care Power of Attorney may also permit the parent to serve as an Agent under “HIPAA” (Health Insurance Portability and Accountability Act), which is Federal law protecting a patient’s health care information, thus allowing the Agent to speak with doctors and receive the child’s protected health care information. Having a Health Care Power of Attorney in place will further negate the need for court proceedings to appoint a guardian to make those decisions. The same is true of a Financial Power of Attorney. If one is in place, no court proceedings will be necessary to enable a parent to make financial decisions for the adult child. Those decisions can be made immediately when they are needed, instead of going through the lengthy process of court guardianship proceedings. Also, the financial cost of drafting Health Care and Financial Powers of Attorney is negligible when compared to the substantial cost of court guardianship proceedings.
We at Wilson+Miller advocate that every family with a child turning 18 years old have the child sign Health Care and Financial Powers of Attorney to allow the parents to make decisions on the child’s behalf, and to allow the parents to speak with doctors and receive protected health care information. That way all bases are covered if, or when, they are ever needed.
If you have a child turning 18, or is moving away from home, whether for college or any other reason, please let us help you protect them to the greatest extent possible, and to ensure that you are able to remain an active participant in your child’s life in the case of an emergency. Please contact us today, 501-221-7776