When your child turns 18 it is a big deal, not just from an emotional perspective, but legally too. Since your child is now an independent adult, you no longer have the same level of access or authority over his or her financial, educational and medical information. Although it is important that your child’s privacy is respected, it is also important that your now adult child have an estate plan including a Health Care Proxy, Power of Attorney and a Will. These documents can help when information must be accessed, decisions must be made or actions must be taken in a timely manner.
Estate Planning for children reaching maturity
When your child reaches maturity, you are no longer his or her legal representative. Under the federal Health Information Portability and Accountability Act, or HIPAA, your18 year old child’s health records are between your child and his or her 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. In Massachusetts, a Health Care Proxy would enable your child to designate you or another trusted person to make medical decisions in the event he or she is unable to convey his or her wishes.
You have likely heard of the Terri Shiavo case, which made national headlines concerning the right to die of younger individuals. At age 26, Shiavo had suffered severe brain damage when her heart stopped. She had spent years in rehabilitation centers and nursing homes but never regained higher brain functioning. Her husband and parents disagreed over discontinuing life support, mainly removing her feeding tube. Years of costly litigation ensued. Finally, after about 15 years, the court ruled that she was in a persistent vegetative state and that her feeding tube could be removed. She died about two weeks later. Had Shiavo executed a Health Care Proxy or similarly written declaration of her wishes, her family would have avoided the legal and emotional conflicts which arose and ensured that her wishes were carried out.
Although difficult, you should discuss with your child whether or not he or she wants to be kept alive by life-sustaining means if he or she would not have a meaningful quality of life. Other issues to discuss with your child are his or her preferences on organ donation, burial instructions, cremation, etc. In the unlikely event that something goes wrong, you will have the peace of mind of knowing that your child’s wishes were carried out.
Just like medical information, your 18 year old child’s finances are as private as yours. If your child is unable to access his or her bank account or resolve a credit card problem, you cannot access that bank account or credit card account in hopes of managing or resolving the problem without a Durable Power of Attorney. For example, your child goes on a college trip with some friends and an issue comes up with the bank where he cannot access his accounts. The Durable Power of Attorney would give you or another trusted person the authority to manage the issue so he can continue on with his trip. You may encourage your child to consider a joint account with you but that is seldom recommended. The implications, whether on tax returns, financial aid applications, creditor issues, untimely death, etc, could have some unintended consequences.
When your child reaches the age of 18, any funds given to the child as a minor are now vested and owned by the child. For instance, a grandparent may have left an outright inheritance to your child or you may have set aside funds in a savings account (an UTMA or UGMA account) for the benefit of your child. In the unfortunate event that your child predeceases you, these assets may have to be probated and will pass to your child’s heirs-at-law. Under the intestate laws, you, as the parent are normally the heir at law. Your child, however, may choose to leave his or her tangible property and financial assets to individuals other than you, like siblings or a charity. In addition, if you have divested assets in order to reduce your estate for estate tax purposes or for asset protection purposes, the receipt of those assets will frustrate your estate planning goals.
The bottom line is that it is never too early to create an estate plan. Having an estate plan can prevent you, as a parent, from needing to go to court trying to obtain legal authority to make time-sensitive medical or financial decisions for your child. While discussing these legal issues is not the way most of us like to spend our time, these documents could save a lot of heartache in the future. You should encourage your child to speak with your estate planning attorney but understand that you cannot direct your child on who she or she appoints to serve. You can only encourage your child to make smart decisions.
THE LAW OFFICE OF STEPHANIE KONARSKI
36 North Bedford Street, East Bridgewater, MA 02333
Phone: (508) 350-0120 Fax: (508) 350-0121
Email: stephanie@konarskilaw.com
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