College and Privacy: Planning Ahead with an Estate Plan

Whether we like to admit it or not, our children do not stay young forever.  They grow up, move away for college and sometimes chose to pursue a career in a different state.

Up until your child reaches age 18, you are entitled to access their medical records and make medical and financial decisions on his/her behalf.  Once your child reaches the age of 18, he/she is now legally an adult and entitled to his/her privacy.  This means you no longer have the same level of access to information or control over financial and medical decisions.  As long as all is well, this can be fine.  However, it is important to plan for the unexpected.  By planning in advance and creating an estate plan, you can be prepared for whatever the future holds.

Four crucial documents to include in your child’s estate plan include:

Health Care Proxy

Should your child suffer a medical crisis resulting in their inability to communicate, doctors and other medical professionals may refuse to speak with you and allow you to make medical decisions on behalf of your child.  If your child does not have a health care proxy already in place, you may be forced to hire an attorney to petition to have you appointed as your child’s legal guardian by a court.  Last thing you need in a time of crisis is court proceedings and legal fees.

HIPAA Release

Under the Health Insurance Portability and Accountability Act (HIPAA), once your child turns 18, you can no longer access their health records without written consent.  The HIPAA laws prevent you from even getting medical updates if your child cannot communicate his/her wishes to have you involved.

Durable Power of Attorney

Similar to medical information, your child’s finances are also private once they turn 18.  Should your child become incapacitated, if they do not have a durable power of attorney in place, you will not be able to access their credit cards or bank accounts to ensure bills are up-to-date and being paid.  If you need to access their financial accounts to resolve any problems or manage the account, you may be forced to seek the court’s appointment as conservator of your child.

Regardless if there is a crisis or not, a durable power of attorney can be helpful should your child be studying abroad, traveling over a break or just away at school.  For example, if your daughter is studying abroad and issues come up where she cannot access her accounts, a power of attorney would allow the chosen person to manage the issue.  Some choose to consider a joint account instead of a power of attorney, however, this is rarely recommended because of possible creditor issues, consequences for taxes, financial aid applications, etc.

Will

The money your child has saved from past birthdays, summer jobs, allowances, etc. are all owned by your child.  In the catastrophic event that your child predeceases you, these assets may have to be probated and will pass according to your state’s hierarchy of heirs.  In most states, the parents would receive the assets.  If you have created an estate plan that reduces your estate for asset protection or estate tax purposes, the receipt of such assets could disturb your estate planning goals.

In addition, the passing of the child’s assets to the parents may not comply with the child’s wishes.  If the child was, for example, involved with a charity or was close with their siblings, they may have selected that their assets be distributed differently.

By executing these four documents ahead of time, should a crisis occur, you will not need to go to court to obtain legal authority to make time-sensitive medical or financial decisions on behalf of your child.

If you have a child approaching age 18, talk to your estate planning attorney about having the child execute these four essential legal planning documents.