Turning 18 is an exciting time in every child’s life. Adulthood comes with increased freedom to make independent decisions. However, something all parents should consider when their child turns 18 is having the child execute (i) a durable power of attorney; (ii) a health care proxy; and (iii) a health care directive. A will is often unnecessary as most 18 year olds do not have significant assets. If an adult child possesses assets, parents should also consider having their child execute a will.
After a child reaches the age of 18, the child’s parents are no longer deemed to be his or her legal representative. All persons 18 years old and older are presumed competent, that is, able to make decisions about health care, finances and other important areas of life. Without these critical documents, in the worst case scenario that an adult child becomes incapacitated due to an accident or sudden illness, his or her parents may not be able to make important health care decisions and/or manage the child’s financial affairs in a prompt manner.
Durable Power of Attorney
A durable power of attorney is a simple estate planning tool in which a child can confer authority to another individual to act on his or her behalf with regard to legal and financial matters. Powers granted can be extremely broad, or can be as limited as the child, as principal, wants. By having a power of attorney in place with language that it is not affected by subsequent disability or incapacity of the principal, or lapse of time, a parent (or other designated individual), can act on behalf of the child when necessary for convenience, and also in the event of emergency.
Health Care Proxy
A health care proxy allows an adult child to appoint an agent authorized to make medical decisions for him or her. The authority of the agent begins upon incapacity of the child. A parent, as a designated health care proxy for an adult child, will be able to make any and all health care decisions on the adult child’s behalf that the child, as principal, could make. This includes vital decisions about life sustaining treatment. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) prohibits the release of medical information to third parties, including parents of an adult child. A written health care proxy contains specific authorization granting the health care proxy the right to receive any and all confidential medical information necessary to make informed decisions regarding the principal’s care.
Health Care Directive
A health care directive allows a child to be in charge of his or her own medical care and assists a health care proxy in making health care decisions under the most stressful conditions. A health care directive memorializes an adult child’s desires concerning health care treatment. While not binding on the health care proxy, it serves as a reminder of the principal’s wishes and can ease the making of difficult decisions concerning the adult child’s care.
Having these three documents in place will help avoid the need to petition the probate court in the event an adult child becomes incapacitated or is otherwise unable to make important financial or health-related decisions. Petitioning the court, if necessary, could deplete valuable resources such as time, energy and money that a parent would otherwise be able to spend addressing the concerns of the incapacitated adult child. This is, by far, the most important reason to have your adult child execute these documents. All three documents can be revoked at any time.