My client received the call that every parent dreads. Her son’s college roommate informed her that her son had been in a car accident and was rushed to the hospital. Her son, and the hospital, were several states away. When she called the hospital to get more information, she wouldn’t give her any. They wouldn’t even confirm whether her son was alive.
Legal at 18
The hospital wasn’t being cruel. Her son was 18 and legally an adult. The hospital had no authority to give her any information. Without the proper legal documents, they couldn’t provide her any information. Luckily, we had completed the necessary documents and her son had signed them before leaving for college. We quickly emailed his health care directive and Health Insurance Portability and Accountability Act (HIPAA) forms to the hospital. My client not only learned what her son’s condition was, but was able to make decisions for him.
Fortunately, her son recovered quickly, and now that client and I both continually tell people when you have a child turn 18, you need to get some basic legal documents in place.
Every adult needs a HIPAA form in place. This is a form that authorizes medical personnel to provide information to the parties you’ve named. Because my client was listed on her son’s HIPAA form (in addition to his father, older brother and grandparents), she could get the information she needed.
The form does not authorize anyone to make decisions (see Health Care Directives below) but does prevent a scenario like the one my client first encountered with her son’s hospital.
A Health Care Directive
A health care directive (sometimes referred to as a health care power of attorney) authorizes someone else to make health care decisions for you and spells out the decisions you’d like made. Without that health care directive, my client would not have been able to make decisions for her son — or at a minimum would have been in a battle with her ex-husband over who had that right.
The agent appointed in the health care directive is also the party authorized to make post-death arrangements, including decisions on autopsies, cremation, burial and selection of the mortuary. This again can be extremely important in the event of divorced parents.
Durable Power of Attorney
Once your child turns 18, you are no longer able to act on their behalf, make decisions for them, or enter into any kind of an agreement binding them. This can be a big enough issue when they are healthy and mentally fit (no, mom, you can’t get their college records without their consent), but it’s a serious concern should your adult child become incapacitated.
A springing durable power of attorney is a document that becomes effective upon the incapacity of the signer, known as the “principal.” It’s called a “springing” power because it springs into effect upon incapacity, rather than being effective immediately. It sets out who can make decisions for you upon your incapacity and what powers the agent has. The agent will be able to access bank accounts, pay bills, file insurance claims, engage attorneys or other professionals needed, and in general, act on behalf of the incapacitated person.
There may also be a need for a power of attorney effective immediately. The son of another client was involved in a car accident the summer before he left for college. A month after he was safely delivered to campus, he was sued by the other party in the car accident. Even though their son wasn’t incapacitated, he wasn’t able to handle the lawsuit from afar. With a power of attorney made effective immediately, his parents were able to act on his behalf to hire an attorney to defend the lawsuit (and ultimately get it settled).
An adult child traveling abroad, moving out of state, or who may still need help handling certain matters should consider completing a power of attorney naming someone to act as their agent as needed, perhaps effectively immediately.
You may think your adult child doesn’t have enough assets to worry about this. But a power of attorney isn’t only over assets—it’s also a power over a person. The power of attorney names an agent who can decide where the incapacitated person receives treatment, where they live, who can visit them, who provides services to them (medical, legal, religious), whether a lawsuit is filed and other such personal matters. It can be a big and important job.
Incapacity can occur because of illness or an accident. It can be temporary or permanent. That’s why every adult needs a power of attorney in place once they turn eighteen.
They will always be your babies, but once your child turns 18, they are legally an adult. Make sure you’ve got the legal documents in place to be there for them in case of an emergency. Spring break, when they’re home for summer, on their 18th birthday, are all opportunities to implement these documents.
Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild.” You can reach her at [email protected]