Do you have children that have turned eighteen or about to turn eighteen? Do you have children that are in college or on their way to college? Did you realize that once your child turns eighteen your rights as their parent cease to exist (and this also applies to a parent who has a disabled child)? In other words, after your child has turned eighteen, you do not have the right to go to the bank for them, to talk to their doctors, or to even talk to the school about their grades, unless your child gives his or her permission. Many parents are quite surprised to learn this and sometimes, they do not learn this lesson until it is too late.
I had a client whose daughter was in college (out of state) and got into an accident while she was riding her bike to class. One of her roommates called the parents to tell them of the accident, and when the parent called the hospital (in a panic) to find out how her child was doing, the hospital would not release any information. Why? Because the child was over eighteen and had not signed a health care power of attorney allowing information to be released to her parents.
What is a “power of attorney”? There are different kinds. A durable power of attorney is a financial power of attorney that allows you to appoint an agent to handle your general or specific affairs (selling real estate, dealing with banking affairs, etc.) if you become disabled, ill, or leave the country. Once an individual turns eighteen, and their parent cannot act on their behalf any longer, they should have a durable power of attorney to appoint someone to deal with their financial affairs in the event they cannot do it themselves. Since it takes effect immediately upon execution, you must have absolute faith and trust in those you name for this position (although, you can have one that does not take effect until you become incapacitated – this is known as a “Springing Power of Attorney”).
A health care power of attorney is a type of advanced directive that allows you to designate a person to make medical decisions for you and to discuss your condition and/or review medical records with your doctors. If my client would have had this for her daughter, she would have saved herself a lot of worry regarding her daughter’s condition because she would have been able to talk to the doctor or nurse.
A Living Will, not to be confused with a Living Trust or a Last Will and Testament, states your wishes regarding whether you wish to be kept alive via artificial life support, forced feeding and/or hydration if you are terminally ill or a physician determines there is no medical probability of recovery. If you cannot make these decisions for yourself, then your health care surrogate will carry through on your wishes.
If you wait until you are incapacitated, it may be too late. A perfect example is the Terri Schaivo case. If she would have had a durable power of attorney, living will, and health care surrogate designation, we might never have heard of her situation. Instead, because she did not have those documents, a guardianship proceeding was necessary and her life was played out in the media. In many cases, documents such as a durable power of attorney, health care surrogate designation and living wills can avoid the need for a guardianship.
If your child is college-bound, protect their health and finances with proper legal power(s) of attorney — a decision that may help you and your child when your family needs it most.
November 9, 2010
Greg Ross
Excellent article. I’ve had the exact same thing happen with clients of mine. Their daughter who was in college was temporarily incapacitated in an auto accident. Because she was over 18 and had not prepared a power of attorney, the parents could not handle any of her financial issues, though luckily the hospital and doctors did consult with them about her care (in probable violation of HIPAA).