By: Len Garza, Special Counsel to the Firm
Just think about it. Your 18-year-old son or daughter heads off to college and gets sick or injured. It could be something as a simple as a sinus infection or an earache, or, something more serious such as an auto accident, alcohol poisoning or complications from the coronavirus. Even on a severity range of one to 10, it may be beneficial, even necessary, for you to intercede.
Questions or issues arise. Is your child allergic to any medications? Is he or she too sick to make a logical decision about the need for surgery? In the worst-case scenario, your young adult could be temporarily incapacitated, and important medical, legal and financial information is needed, and decisions must be made. But your now young-adult kid is on his or her own. If he or she is 18, the age of majority in most states, the reality is you will not be able to intervene.
Believe it or not, even if you’re footing your kids’ tuition bills, claiming them as dependents on your tax return and insuring them on your health plan, you cannot get involved with issues concerning their health or finances without their permission.
Unwelcome surprise. Viable solution.
What an unwelcome surprise causing both frustration and fear. It’s a crisis situation far too many parents encounter when their rising college freshman leaves for school, unless—and this is an important unless—they have prepared for this possibility beforehand.
You don’t have to be a helicopter parent to have your kids sign two important documents: a Power of Attorney (POA) and a Health Care Directive (HCD).
Right now, you’re probably ordering dorm room sheets, pillows and other necessities from Amazon. You should also take a few moments to schedule an appointment with your estate attorney. He or she can draft these two vital documents for your youngster’s signature. A Power of Attorney and a Health Care Directive (also called a Health Care Proxy, Living Will, Health Care Power of Attorney or Advance Directive) enable you to make important medical, legal and financial decisions on behalf of your child in the event he or she is incapacitated. Whether you’re a parent, guardian, relative, friend or caregiver, if you’re assigned this role in one of these documents, you’re granted this power.
What These Documents Do:
Power of Attorney
The POA is a legal document that gives another person (in this case, a parent or other trusted family member, friend or individual) the power to act on behalf of an individual (the principal, who in this case, is your son or daughter). A POA can be very broad or very limited and is typically used to give an individual lawful authority to make legal decisions about another person’s finances, property, and other matters.
There are various types of POAs (general, durable, limited, springing), but when it’s necessary to act on behalf of your adult child, your best option is a durable power. The Durable POA becomes effective immediately after your youngster signs it and is frequently used if your child becomes incapacitated because of illness or disability. For example, you would need the POA to communicate with your youngster’s bank and credit card companies, and to make other financial decisions such as signing checks, selling property, filing taxes, dealing with leases—even accessing your son or daughter’s transcript from a college or university.
A Springing Power of Attorney can also be used for this purpose. But unlike the Durable POA, it is not immediate. In fact, it gets its name, because it “springs” into effect when the principal is incapacitated. As a result, it is not optimal in this situation because incapacitation must be determined by a medical professional. In an emergency, the need for this determination could eat up too much precious time.
Health Care Directive
The HCD authorizes another person, the health care representative (e.g., a parent or other trusted family member, friend or individual) to make medical decisions on behalf of your child. In the event of a potentially tragic event, your son or daughter may be unable to communicate his or her wishes about medical care. In this situation, the HCD assigns a health care representative, typically you as the parent, to make medical decisions for your youngster. For example, if your son or daughter is unconscious or in a coma, the health care representative appointed in the HCD has the authority to consult with the attending physician and carry out your son or daughter’s health care instructions as defined in the HCD.
The HCD is crucial and can alleviate stress and anxiety about how difficult decisions involving medical care should be dealt with if and when they are warranted. This would include the use of feeding tubes and other medical procedures that may prolong life but not sustain quality of life, especially if a patient is in a terminal condition. Also, the definition of terminal condition can and should be spelled out in the HCD, so all parties know what constitutes terminal and when that condition has occurred.
DIY documents: a false sense of security
Several legal websites offer forms online. If you’re thinking of going that route, I suggest you think twice. Quite frankly, a Power of Attorney and Health Care Directive are too important for DIY-ing despite what various websites may tell you. In fact, going online could actually give you a false sense of security. The truth is if you don’t follow certain states’ laws precisely, you may find out all too late that the documents are invalid or unenforceable. In that event, the hospital, bank, landlord, etc. could simply refuse to deal with you. At a time when every minute counts, you might have to resort to court intervention (e.g., filing a motion or some other court application for an emergency action) to get the authority you need. Even uncontested applications could take a court weeks to decide. This type of delay is unacceptable in an emergency.
While there are cross-state similarities for these documents, there is no truly uniform Power of Attorney or Health Care Directive. Though an internet search will get you many different forms, they are of varying quality. Is the form you choose acceptable in the state in which your kid’s college is located? What’s more, even if it says it applies, can you trust it?
Additionally, many states have their own formalities regarding document signing. Does the document require notary or witness signatures? And in the case of witnesses, is one sufficient or do you need two? Also, is an original wet-ink signature required, or will a copy do? There’s not a parent who wants to face any of these complications during a potentially challenging time.
Don’t leave matters to chance: seek out an estate attorney
It is wise, then, to work with an estate planning attorney. He or she knows the specifics of this area of law, and also the idiosyncrasies of the particular jurisdiction in which your son or daughter plans to attend school. Only then can you rest assured these important matters are being handled properly.
Still, the situation can be dicey. For one thing, your rising freshmen may be feeling the power of their new independent status. While you, no doubt, respect the pride they have in being on their own, you also care about their well-being.
Though you will likely be footing the legal bill, in reality your kid is the client. It’s important you set up a meeting between your youngster and your attorney, ideally without you present. Your attorney will need to make sure your son or daughter understands the value of these documents and how, when and why they go into effect. The face-to-face meeting also gives your lawyer the chance to evaluate the individual intentions and family relationships that could influence the situation. For example, an estranged relationship with a parent, divorce in the family or other scenarios could have a bearing on the preparation of the HCD and POA. But bottom line, as with all important decisions, clear communication between you and your youngster and your child and your attorney is imperative.
Privacy vs. real-world needs
Kids need to understand the important distinction between privacy and the need for the advocacy of a responsible party in critical situations. While your children have the right to maintain their privacy, the reality is that they, like all adults, can face health and financial issues that must be handled quickly.
Quite frankly, as a parent, you are the best person to be involved with your child’s medical and legal matters. But sometimes parent-child relationships are strained. If that is the case, your youngster can appoint another trusted adult such as an aunt, an uncle or an older sibling. In these cases, it’s also a good idea to name an alternate, because when duty calls, your child’s first choice may be unable or unwilling to serve in this role. The important outcome is always that your child has an appointed legal representative as an advocate in emergencies.
At The Nan Gallagher Law Group, LLC, our estate planning guidance is always crafted to serve your specific need. With high school graduation in the rear-view mirror and freshman year approaching, it’s time to put a Power of Attorney and Health Care Directive on your to-do list. You’ll have peace of mind, and ultimately your kids can feel confident knowing they have this added layer of security.
Call us at 973.998.8494 to schedule an appointment with Len Garza and execute these important documents.