Congratulations! Your child is graduating high school! As a parent, you deserve a lot of credit! You’ve spent eighteen years protecting, guiding, and providing for your child’s needs and it has culminated in this achievement! But your job isn’t over yet, and there are several things you need to do to make sure you can be there for your child if your child if needed.
Now that your child is 18, your legal rights in relation to your child have changed. You no longer have automatic authority to make decisions for your child. If something happens, like an accident or serious illness, you may find yourself unable to help with your child’s medical, financial, property, and benefits-related decisions without pursuing expensive and time-consuming guardianship proceedings in the courts.
Fortunately, there are several legal documents your child can put in place now to allow you to help later, if needed. These include 1) a Durable Power of Attorney, 2) a Medical Power of Attorney, and 3) a HIPAA Authorization. With these documents in hand, you will have a much easier time accomplishing things like:
- obtaining medical information about your child if they are in an accident,
- making insurance claims,
- applying for government benefits on your child's behalf,
- making medical decisions,
- managing your child's finances,
- filing your child's taxes, and
- pursuing litigation if necessary.
In short, these tools will allow you to help your child if needed and reduce the need to go through the courts. They can also ensure your child has a backup in place if you are unavailable and your child still needs help.
While these key incapacity planning documents can be a lifesaver, it is important to understand that they can only be put in place while your child is legally able to make decisions. If incapacitated due to an accident or illness, your child will legally be unable to grant you or a backup authority to help them unless or until capacity returns. For this reason, it is important to contact a qualified estate planning attorney, who can help put these documents in place and assess other steps you and your child may wish to take to better prepare for the twists and turns life has to offer.
Let's take a look at these documents in a little more detail.
Durable Power of Attorney
A Power of Attorney allows a person (the “principal”) to appoint someone else (the “agent”) to act on their behalf. Normally an initial agent is appointed, and one or more backup agents are set forth. A Power of Attorney can be drafted so that the rights granted by it are very narrow (a “limited power of attorney”) or they may be drafted very broadly to allow the agent to make almost any decision that the principal might need someone else to make (a “general power of attorney”). Typically, estate planning attorneys recommend the “Durable Financial Power of Attorney” (aka "Durable Power of Attorney") for incapacity planning purposes. It allows the agent to manage the principal’s finances, is usually drafted to be effective immediately, and remains in effect even if the principal loses capacity.
Being appointed an agent under a Power of Attorney does come with responsibility. Power of Attorney agents have “fiduciary duties” to the principal and must act in good faith, not act beyond the powers granted to them, act loyally for the principal’s benefit, avoid conflicts of interest, keep detailed records, and disclose that they are an agent when acting on behalf of the principal. If these duties are breached, the agent may be liable for damages or even criminal prosecution in cases like fraud or theft.
Medical Power of Attorney
A Medical Power of Attorney allows a person (“the principal”) to appoint someone else (the “agent”) to make health care decisions on the principal’s behalf. Like a Durable Power of Attorney, an initial agent is appointed, and backup agents are set forth. Under Texas law, authority granted under a Medical Power of Attorney may only be exercised if the principal’s attending physician certifies in writing that the principal is legally incompetent and files that writing in the principal’s medical record.
Agents exercising authority granted under a Medical Power of Attorney must do so according to their understanding of the principal’s wishes, including religious and moral beliefs. If the agent doesn’t know what those beliefs are, the agent must act according to the agent’s assessment of the principal’s best interest. Even when a Medical Power of Attorney has been signed and even if the principal has been determined to be incompetent, medical treatment may not be given or withheld from the principal if the principal objects.
Under a Medical Power of Attorney, agents are not allowed to make some decisions. These include voluntary inpatient mental health services, electroconvulsive therapy, psychosurgery, abortion, and neglect of comfort care.
HIPAA (the “Health Insurance Portability and Accountability Act of 1996”) protects patient privacy by preventing healthcare providers, health plans, and related entities from disclosing a person’s health information to others except in a limited set of circumstances. Steep fines and even criminal penalties can be enforced against healthcare providers who violate the Act. Because of this, healthcare providers are often reluctant to share a patient’s medical information, even to family and friends.
Many parents overlook the fact that they may no longer have access to their child’s medical information once the child reaches adulthood. Due to HIPAA’s restrictions on disclosure of health information, it is important for young adults to have a HIPAA authorization in place naming their parents and anyone else they want to have access to their medical information.
Once these three main documents are in place, your child may wish to evaluate whether additional considerations need to be addressed. Potential considerations include making a basic will, ensuring appropriate beneficiary designations for financial and benefits accounts, ensuring the child’s estate can cover final expenses, nominating preferred legal guardians (if needed), authorizing non-parents to care for children (if already a parent), and avoiding probate. Parents may also want to review their own estate plans to ensure they are up to date.
The Law Office of Brandon S. Glosson provides estate planning services for clients in San Antonio and surrounding areas. We offer free initial consultations and friendly, professional service. To set an appointment, please call (210) 802-5288 and we will be honored to assist you and your family.