As we head into summer, many parents will see their children graduate high school and prepare to leave home to attend college or pursue other life goals. This can be an exciting and emotional time, and with so much going on, estate planning probably isn’t at the front of your (or their) mind right now.
However, estate planning should actually be a top priority for both you and your kids.
Here’s why: Once your kids turn 18, they become legal adults, and many areas of their life that were once under your control will become entirely their responsibility, whether you take action or not. To this end, if your kids don’t have the proper legal documents in place, you could face a costly and traumatic ordeal should something happen to them.
If your child were to get into a serious car accident and require hospitalization, for example, you would no longer have the automatic authority to make decisions about his or her medical treatment or the ability to manage their financial affairs. Without legal documentation, you wouldn’t even be able to access your child’s medical records or bank accounts without a court order.
To deal with this vulnerability and ensure your family never gets stuck in an expensive and unnecessary court process, before your kids leave home, have a conversation about estate planning and make sure they sign the following three documents.
The first document your child needs is a medical power of attorney. A medical power of attorney is an advance healthcare directive that allows your child to grant you (or someone else) the immediate legal authority to make healthcare decisions on their behalf if they become incapacitated and are unable to make these decisions themselves.
For example, a medical power of attorney would allow you to make decisions about your child’s medical treatment if he or she is incapacitated in a car accident or falls into a coma due to a debilitating illness like COVID-19.
Without a medical power of attorney in place, if your child suffers a severe accident or illness that requires hospitalization and you need to access their medical records to make decisions about their treatment, you’d have to petition the court to become their legal guardian. While a parent is typically the court’s first choice for a guardian, the guardianship process can be slow and expensive—and in medical emergencies, time is of the essence.
Not to mention, due to HIPAA laws, once your child becomes 18, no one—not even their parents—can legally access his or her medical records without prior written permission. However, a properly drafted medical power of attorney will include a signed HIPAA authorization, so you can immediately access your child’s medical records to make informed decisions about his or her treatment.
While a medical power of attorney allows you to make healthcare decisions on your child’s behalf during their incapacity, a living will is an advance directive that provides specific guidance about these decisions, particularly at the end of life.
For example, a living will allows your child to advise if and when they want life support removed should they ever require it. In addition to documenting how your child wants their medical care managed, a living will can also include instructions about who should visit them in the hospital and even what kind of food they would want provided. For example, if your child is a vegan, vegetarian, or takes specific supplements, these things should be considered and documented in their living will.
Additionally, given the pandemic, speak with your child about the unique medical decisions related to COVID-19, particularly intubation, ventilators, and experimental medications. At the same time, your child’s living will should also outline their quality of life decisions to ensure their emergency medical treatment doesn’t end up doing more harm than good.
Although you’ll find a variety of medical power of attorney, living will, and other advance directive documents online, your child has unique needs and wishes that can’t be anticipated by these fill-in-the-blank documents. Given this, we recommend you and your child work with a Personal Family Lawyer® to create—or at the very least, review—their advance directives.
Should your child become incapacitated, you may also need the ability to access and manage their finances and legal affairs, and this requires your child to grant you durable financial power of attorney.
Durable financial power of attorney gives you the authority to manage their financial and legal matters, such as paying their tuition, applying for student loans, paying their rent, negotiating (or re-negotiating) a lease, managing their bank accounts, and collecting government benefits if necessary. Without this document, you’ll have to petition the court for this authority.
Start Adulthood On The Right Track
Before your kids leave the nest, discuss the value of estate planning and make sure they have the proper legal documents in place. By doing so, you are helping your family avoid a costly and emotional court process, while also demonstrating the importance of good financial and legal stewardship, which sets your kids on the right track from the very start.
As a Personal Family Lawyer®, we will not only help you draft these documents, we can also facilitate a family meeting to discuss the importance of estate planning with your kids. From there, we hope this will begin a life-long relationship with your children, as they start on their journey into adulthood and beyond. Contact a Personal Family Lawyer® today to schedule your appointment.