Summer is drawing to a close, and the day your son or daughter goes off to college is rapidly approaching. That makes this a great time to do a little planning ahead to protect your child once they start school, whether it’s their first year away from home or they’re returning for a new school year.
If your child is already 18 or will soon be of legal age, you should consider putting some important legal documents in place, recommends attorney John O. McManus, founder of the New York- and New Jersey-based estate planning firm McManus & Associates. If an accident, emergency, mental health crisis or trouble with substance abuse should arise after your son or daughter’s 18th birthday, you have little or no legal right to step in without legal documents that explicitly give you that authority.
“Before your adult children leave for school, they should strongly consider completing a Health Care Proxy, Durable Power of Attorney, Living Will and an Authorization for Release of Protected Health Information to provide [you] with the authority to act with respect to their medical, legal and financial needs if they get sick or hurt, or are otherwise unable to handle their own affairs,” says McManus. “Even for children who have newly become legal adults, parents need to be empowered to make decisions to help protect them in times of need.”
It may seem hard to believe, but “without these executed documents, colleges, clinics and hospitals will not release a student’s medical records — even to parents — if the student is over the age of 18,” he adds. “This may be extremely detrimental to a child’s well-being in a physical or emotional medical emergency, such as in the case of addiction, a mental health crisis or even a car accident. Without a back-up decision maker in place [meaning a parent or other designated adult], there is a risk of inadequate, inappropriate or insufficient medical care if your child is incapacitated.”
Your Child is Now an Adult
While 18 may be the legal age for adulthood in most U.S. states, it’s worth noting that brain development is definitely not complete at this time. A young adult’s brain is still reaching maturity. “Humans’ frontal lobe is not fully developed until the mid-20s and people who have newly entered adulthood still need to tap their parents’ experience-earned insight when evaluating important decisions,” McManus believes.
No one is suggesting, though, that you treat your 18-year-old like a child. But if an emergency happens, these documents could make a big difference. Attorney fees to prepare these four documents vary by location and law firm.
Parents may be able to find these forms online as well, but the format in some cases may vary by state. In general, McManus says documents that are properly executed in a state of residence can be used if your child temporarily lives in another state (at college, for example). But, “enlisting the help of an experienced attorney is the best way to ensure that your child is adequately protected,” he says.
These legal documents cannot be signed until your son or daughter turns 18. And your adult child can revoke these documents at any time.
How to Discuss Signing Legal Documents with Your Adult Child
“Being the child of an attorney, my daughter pored through these documents to find out exactly what powers she was giving,” McManus says. “She signed because she realized that they could keep her safe if she got into an accident or had a medical emergency while at college. The piece that I emphasized with her was that her mother and I would only step in if she was in danger – and that’s danger with a capital ‘D’.” McManus offers more guidelines for working with your child to get these documents in place, assuming he or she is open to using them:
- DO respect that your child is now an adult. Legally speaking, adult children are “emancipated individuals” with all the protections of the Constitution. Therefore, he or she has the power to exercise the right to enter into a contract (or not) and to revoke anything you do put in place, at any time.
- DO point out the value of these documents. “Show your children the value of having someone who can look after them in the event of an emergency,” McManus suggests. “No one legally may look after the child when he or she turns 18 without a court order, which can take a significant amount of time and expense – and time may not be an available resource in an emergency.”
- DO assure your kid that you have no desire to overstep boundaries. Your son or daughter should hear from you that these documents will be used only if you have reason to believe he or she is in real danger. “The best approach is to assure your child that you are not trying to take away their independence at a time when they are particularly in need of exercising this independence,” McManus says.
- DO consider putting in place other documents if you child has large assets. “While most young adults do not possess assets great enough to merit the use of a Last Will and Testament” McManus says, “adult children should consider executing a Will if large gifts have been made to them, if they own shares in a family business or if they received money from a settlement. In the tragic case of death, a Last Will and Testament may be a critical component in a family’s overall estate plan to avoid unintended beneficiaries and estate tax implications.”
- DO check the university’s website for other helpful paperwork. Parents are not entitled to access educational records once their child leaves high school, even if the student isn’t 18 yet. The federal Family Educational Rights and Privacy Act (FERPA) protects your student’s privacy. But your son or daughter can sign a FERPA privacy waiver, allowing you to request educational information including grades, enrollment status and attendance. The waiver also will allow you to request health information, disciplinary actions, and violations of the campus drug and alcohol policies as well as warnings if your student is in danger of losing campus residency status. Sometimes schools may notify you if your minor child has violated an alcohol use or controlled substance policy on campus or if there is a safety issue involving your child (FERPA allows parents to be notified in certain emergency situations even without a FERPA privacy waiver, but the school determines how much information to disclose and when). Check under the parents’ section of the college’s website to download the waiver, and talk to your child about signing it. Note if the waiver is good for one school year or for the entire time your student attends a school so the waiver is kept up-to-date.
- DON’T make signing the documents a condition of paying tuition or supporting your child. If you’re footing the bill for tuition and room and board, you may think you have a right to have your child sign these forms before they head to school. “That may not be the best approach, as it’s likely to breed resentment,” notes McManus, which is exactly what you don’t want in your final days together before your child leaves for college.