When your child turns 18, he or she is now considered an “adult” in the eyes of the law in Massachusetts and many other states. Although you may still view them as a child, you need to put in place some essential documents so that you can help in the event that something unexpected happens.
Every child over age 18 should have a health care proxy and durable power of attorney naming a parent/ parents. If you are not named as a health care agent, a hospital cannot legally discuss your child’s condition, let you make any health care decisions, or confirm that your child is receiving care.
A health care proxy names someone to make medical decisions if your child is incapacitated. A properly executed health care proxy and HIPAA release will allow your child’s doctors to discuss privileged medical information with you and give you the power to make decisions regarding treatment.
It is also important to have a durable power of attorney for financial matters. Even if you are the one paying the college tuition, you are not legally allowed to manage your child’s money or communicate with his or her financial institutions or schools. Your child may become incapacitated or simply be unavailable if attending school in another state or participating in a study abroad program. A power of attorney permits you to access bank accounts, file tax returns, deal with student loans or other creditors, speak to the financial aid office, and handle any other financial issues that may arise.
If an adult child is incapacitated and does not have a health care proxy or power of attorney in place, then your only recourse will be to go to court to obtain a Guardianship and/or Conservatorship. This involves a public process that can be expensive and time consuming.
In addition to a health care proxy and durable power of attorney, some adult children may also need a will. If your child owns significant assets in his or her name, then he or she should sign a will to name a personal representative to settle the estate and decide who should receive those assets. If your child does not have a will, the assets pass according to your state’s intestacy statute. Typically, that means the assets will go to the child’s parents, which may negate your own estate planning.
As a parent, you hope that you will never need to use these documents, but they are vital in an emergency and can be easily accessible on your phone.