Question: My son is 18 and is leaving for his first year of college in September. Someone told me that there were some legal documents I should have in place before he leaves. This is the first that I have heard of this, as his school did not say anything. Is my friend correct?
Answer: Yes, your friend is correct. With so many other things to worry about during this stage, it may be overwhelming to begin to consider the legal implications of your child reaching “adulthood.” Yes, that’s right, in New York State the age of legal majority is eighteen, which is accompanied by a legal emancipation from your parents. Simply stated, once your child turns eighteen, they are legally capable of making their own decisions, which include major financial and medical decisions. Although many eighteen-year-old children still rely strongly on their parents for help with big decision making, legally, parents are no longer able to access certain information without appropriate legal documentation. The documents that we typically recommend are a Health Care Proxy, Living Will, and Power of Attorney.
A Health Care Proxy designates a healthcare agent to make medical decisions for your child if they are unable to make those decisions on their own. This document allows the agent to have access to medical records and to have discussions with doctors, discussions which would normally be prevented due to HIPAA privacy regulations concerning children who have reached the legal age of majority. Your child can designate a primary agent and any number of successor agents in a specific order. It is important to note that you cannot have more than one healthcare agent at a time.
A Living Will memorializes your child’s wishes with respect to any end of life treatment and the withholding or withdrawal of treatment which serves only to prolong life without reasonable expectation of recovery. This document also typically states wishes with respect to administration of pain medication. This document will be relevant if end of life decisions must be made on behalf of your child.
A Power of Attorney is a document in which your child can appoint an agent to act on their behalf with respect to all financial and business decisions. This document would allow the agent to step into the shoes of your child and pay bills, access bank accounts, deal with financial institutions, and handle any business matters. If your child becomes incapacitated and does not have this document in place, a court proceeding would be required to appoint someone to handle these matters.
Hopefully your child will not need to rely on these documents but having them in place can be invaluable in the event that you need them. Before your son goes off to start a new chapter in his life, he should consult an Estate Planning Attorney in your area to set up these documents.