All three of my children are in college and over eighteen. Though I still think of them as kids, the law sees them as adults. The moment a person attains the age of eighteen, he or she is an adult. As an adult, the authority of a parent as the natural guardian for the child ends. In other words, the parent can no longer make medical or financial decisions for the child simply because of parental status.
Even if the child were born severely disabled and it would be clear to anyone who meets the child that he cannot make decisions for himself, the power of the parent as the natural guardian ends when the child attains the age of eighteen. For disabled children, the parent may need to file a guardianship action with the court to have the court appoint the parent as the legal guardian for the child. I have handled hundreds of guardianships for parents over their disabled children who are now eighteen years old or older.
But today I want to talk about what every parent should do for their child who is not disabled when the child attains the age of eighteen. Anyone who is an adult should have a financial power of attorney, also called a general durable power of attorney. Adults should also have an advanced healthcare directive.
A general durable power of attorney is a legal document that permits one person, called the agent, to make decisions for another person, called the principal. Typically, the principal has a lawyer draft the document appointing the agent. A general power of attorney permits the agent to make financial decisions for the principal—access bank accounts, pay bills, sell real estate. In this way, if the principal were ever to become disabled (for instance, if the principal gets into a car accident), the agent can manage any financial decision for the principal.
A “durable” general power of attorney means that the power of attorney remains effective even if the principal is disabled. If the power of attorney were not durable, the agent could not act for the principal if the principal were disabled, which would defeat the purpose of the power of attorney in most instances.
An advanced healthcare directive is a document that permits one person—called the proxy or healthcare agent—to make decisions for another person, called the principal. An advanced healthcare directive can also state, in general terms, how the principal would want to be treated in given circumstances. For instance, the document could say, “If I am in a situation where my healthcare agent believes there is no reasonable hope of my recovering, then I do not wish to have extraordinary medical care rendered to me.”
A healthcare directive is not a death warrant. It does not mean that doctors will not treat you because you have a directive. It simply allows someone else to make healthcare decisions for you in the event that you cannot make decisions for yourself. If a person has failed to sign a healthcare directive, then no one else can make decisions for him. While doctors may listen to a family member, they do not have to.
In an advanced directive, the principal can also grant the agent access to his healthcare information. Under federal law, healthcare information is private, so doctors, healthcare providers, and insurance companies cannot reveal your information to anyone but you; however, if the advanced directive permits the agent to access the principal’s information, then he can.
When children go away to college, you should ensure that the child signs a financial general durable power of attorney and an advanced healthcare directive. It is bad enough to find out from a roommate that something has happened to your child. Worse still, you might arrive at the hospital and learn you cannot get any information because you lack legal authority.