Turning 18 is a big deal, not just from a parent’s emotional perspective, but legally too. Eighteen is a magic birthday, a milestone into adulthood. At 18, your teen can vote, buy a house, or marry their high school sweetheart. They can also go to jail, get sued, and gamble away their college tuition in Vegas.
In your eyes, your baby will always be “your baby,” no matter their age, but in the eyes of the law, that “baby” is legally an adult on their 18th birthday. In New York State, a child is entitled to be financially supported by his or her parents until the age of 21, unless married, self-supporting or in the military; as far as the law is concerned, he or she is an adult at age 18 and information regarding their health, finances, and education will not be disclosed to anyone without their written consent. If not carefully planned, you will have no access to their medical, financial, or academic records.
Furthermore, in the unanticipated situation where your child is incapable of making decisions on their own, you will be barred from making them on their behalf. This can present a unique set of challenges if your child is away at college. Planning for these and other issues that may arise is key to avoiding the various pitfalls that you and your children may face. Once again, prudent to plan for the worst, hope for the best.
What can be done?
Certain legal documents should be put in place to designate you as your child’s legal representative
Documents you should consider having in place on your child’s 18th birthday:
- Health care proxy with HIPAA authorization. This document is essential to provide authority to make health care decisions on behalf of your child. Health care proxies don’t normally kick in unless your child is determined to be physically or mentally incapable of making decisions on their own. It’s a scenario you never want to have to consider as a parent, but it’s a document you will be thankful to have in place if you ever need it. The Health Insurance Portability and Accountability Act, otherwise known as HIPAA, is a privacy law that prevents anyone from inquiring about your child’s current medical condition or medical records. If you want to maintain access to that information, a HIPAA authorization document must be on file.
- Financial power of attorney including FERPA authorization. A power of attorney allows you to make financial decisions and access financial records on your child’s behalf. The list of benefits is long but a practical reason is simply if they are getting ready to head off to college, details like financial aid and/or tax deadlines, contractual obligations, and other time-sensitive financial decisions can be easily overlooked amongst their busy schedules. By exercising the authority granted in a Power of Attorney, you may be able to maintain access to these matters, and you and your child may be able to avoid some headaches or costly mistakes. FERPA stands for the Family Educational Rights and Privacy Act, which requires that students over age 18 give written consent before any educational records can be released to another person. “Educational records” is broadly defined under FERPA to mean those records that are: (1) directly related to the student, and (2) maintained by an educational agency or institution acting for the agency or institution. Of course, this include transcripts, disciplinary actions, scholarship information, and tuition information, but what is less apparent is that records maintained by the college campus’s health clinic are also considered an “educational record” and therefore not covered under HIPPA. For example, if your child visits his or her university’s health services center for treatment, you will not have access to his or her medical records merely by presenting a signed HIPAA form. By way of contrast, however, if your child is sent to the local hospital for treatment, then the HIPAA form would permit you to access his or her medical information.
- Simple will. If your adult child dies owning assets, his or her estate is subject to the probate laws of their jurisdiction. If the child does not have a will or will substitute, any untitled assets will pass according to the intestate laws of the state. Generally, the assets of an unmarried child with no descendants, will pass to his or her parents, if they are living. If the parents are not living, the assets will go to their siblings. Although the appropriateness of a will or will substitute varies based on the complexity of the child’s estate, you should consider discussing this with your adult child.
The Estate planning Law Center has made it very easy for you to get these important documents in place before your child leaves for college by using our online document creation platform – Guidr. It’s fast, affordable, and on your own time.
