When my youngest daughter went away to college, I worried, “Is she getting enough sleep? Is she attending class regularly? Is she remembering to be aware of her surroundings when she goes out at night?” One thing I didn’t worry about was, “Do we have the right documents in place if something bad should happen to her?”
When your child is a minor, you are entitled to access his or her medical records and make decisions regarding their medical treatment and financial affairs. But this all changes once your child reaches 18. In the eyes of the state, your now-adult child is legally entitled to his or her privacy and you no longer have the same level of access to or authority over their financial, educational and medical information.
Though I received phone calls between classes, and the occasional text to let me know she was doing well, nothing gave me more peace of mind than knowing we had a plan in place that reflected her wishes if anything should happen to her.
As parents, we don’t want to imagine that anything bad will ever happen to our children, but it’s important to plan for the unexpected. Before your son or daughter starts their fall semester this year, consider setting up an estate plan that at least includes the following three crucial components:
- Health Care Proxy with HIPAA Release
Under the Health Insurance Portability and Accountability Act, or HIPAA, once your child turns 18, their health records are now between them and their health care provider. The HIPAA laws prevent you from even getting medical updates in the event your child is unable to communicate his or her wishes to have you involved. Without a HIPAA release, you may face many obstacles before receiving critically needed information, including whether your child has been admitted to a particular medical facility.
Should your child suffer a medical crisis, doctors and other medical professionals may refuse to speak with you or allow you to make necessary medical decisions. A health care proxy with a HIPAA release would enable your child to designate you or another trusted person to make medical decisions in the event they are unable to convey his or her wishes.
- Durable Power of Attorney
Like medical information, your 18-year-old’s finances are also private. If your child becomes incapacitated, without a durable power of attorney you cannot access your child’s accounts or credit cards. If you needed to manage their accounts or pay bills on their behalf, you may be forced to seek the court’s appointment as your child’s conservator. In Louisiana, this is referred to as an interdiction.
Absent a crisis, a power of attorney can also be helpful in issues that may arise when your child is away at college or traveling. For example, if your son is traveling and an issue comes up where he cannot access his accounts, a durable power of attorney would give you or another trusted person the authority to manage the issue.
Your child owns any funds given to him or her as a minor or that he or she may have earned. If your child predeceases you, these assets may have to be probated and will pass to your child’s heirs at law, which in Louisiana would be his or her siblings, with a usufruct (right to use) to the parents. Additionally, your child may wish to leave some personal property and financial assets to other family members or to a charity.
While a will may be less important than the health care proxy, HIPAA release, or durable power of attorney, ensuring that your child has all three components of an estate plan can prevent you, as a parent, from having to go to court to obtain legal authority to make time-sensitive medical or financial decisions for your child.
Talk with your child today and find out what their wishes are. While these documents won’t let you know if your child is getting good grades or eating three balanced meals a day, you can rest assured that you are both prepared for the unexpected.
The information provided is not intended to be legal advice and does not constitute any attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation.
Ms. Melancon is an attorney with Legacy Estate & Elder Law of Louisiana, LLC with offices in Baton Rouge and Lake Charles, LA. The primary focus of her practice is estate planning, probate, special needs planning, and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027.