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Wednesday, June 20, 2018

The Importance of Estate Planning When the Kids Turn 18

A child going to college is widely considered the first major step for moving from childhood into adulthood.  However, many parents do not associate this milestone with a need to consider estate planning for the child.  The reality is once a child turns 18 years old, the parents no longer have any legal parental rights over the child.  To put it bluntly: once a child turns 18, his or her parents no longer have any legal say over medical or financial decisions involving the child.

Therefore, every child over the age of 18 should execute a Health Care Proxy and a Durable Power of Attorney.

Under the Health Insurance Portability and Accountability Act (more commonly referred to as HIPAA), your child's health records are between your child and his or her health care provider as soon as your child turns 18.  HIPAA laws go as far as preventing parents from even receiving medical updates or make decisions for their child if the child is unable to do so.  In the unfortunate, but not uncommon, case that your child suffers a serious medical situation resulting in his or her inability to communicate, it is more likely than not that your child's doctors and other medical professionals will refuse to speak with you and will not allow you to make medical decisions for your child.  

In this situation, in the absence of necessary estate planning documents, you would be forced to petition the Court to have you appointed as your child’s legal guardian.  This is time consuming, costly, and emotional process.  All that would be needed to avoid this is a simply estate planning document called a health care proxy (which can also be referred to as a health care power of attorney or Advance Directive, depending on the state).

Another important estate planning document that an 18 year old should sign is a Durable Power of Attorney.  This document provides power to the individual's person of choice (referred to as their attorney-in-fact) to make financial decisions on his or her behalf in the event of incapacity.  While many college students do not have major assets in their name, the Durable Power of Attorney is still a crucial document to have.  For example, many college students have financial aid packages.  Without a Durable Power of Attorney, the child's parents cannot manage their child's financial aid or even file tax returns on their behalf.

The hope would obviously be that these documents will never be necessary.  Unfortunately, things happen in life and it is always better to be prepared then to be stuck in a difficult, costly, and painstaking process.

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