Editor's Note: The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
A parent generally feels as though they are losing control of their teenage child. But when he/she turns 18, then the state considers your child to be an adult with the legal right to govern his or her own life. Yikes!
Becoming independent is all part of growing up. However, most parents are still footing the bill for education and expenses of their college student children. Up until your child turns 18, a parent is entitled to access their child’s medical records and to make decisions regarding the course of treatment.
The child’s financial affairs are the parents financial affairs as well. And then there is the whole matter regarding access to grades in those college courses you are paying for. All this changes once your child reaches the age of 18. At 18, the now adult child is legally entitled to his or her privacy and you no longer have the same level of access to or authority over their medical, financial and educational information. As long as all is well, this can be fine. However, it is important to plan for the unexpected and for your child to set up an estate plan that at least includes the documents I will cover in this week’s column.
Healthcare Power of Attorney/HIPAA Release:
Legally, pursuant to the Health Insurance Portability and Accountability Act (HIPAA), once your child turns 18, the child’s health records are now between the child and his or her health care provider. HIPAA laws prevent you from even getting medical updates in the event your child is unable to communicate his or her wishes to have you involved. Without a Healthcare Power of Attorney containing a HIPAA Release, you may have many obstacles before receiving critically needed information, including whether your child has been admitted to a medical facility and what treatments are being provided.
Should your child suffer a medical crisis resulting in the child’s inability to communicate for him or herself, dotors and other medical professionals may refuse to speak with you and allow you to make medical decisions for your child. You may be forced to hire an attorney to petition to have you appointed as your child’s legal guardian by a court. At this time of crisis, your primary concern shou be to ensure your child is taken care of and you do not need the additional burden of court proceedings and associated legal costs. A Healthcare Power of Attorney with HIPAA Release would enable your child to designate you or another trusted person to make medical decisions and receive medical information in the event your child is unable to convey his or her wishes.
Statutory Durable Power of Attorney:
Like medical information, you 18 year old child’s financial and educational information is private. If your child becomes incapacitated, without a Statutory Durable Power of Attorney you cannot access the child’s bank accounts or credit cards to make sure bills are being paid. If you needed access to financial accounts in order to manage or resolve any problem, you may again be forced to seek to be appointed legal guardian by a court.
Absent a crisis, a Statutory Durable Power of Attorney can also be helpful in issues that may arise when your child is away at college or traveling. For example, if your child is traveling and an issue comes up where he or she cannot access his or her accounts, a Statutory Durable Power of Attorney would give you or another trusted person the authority to manage the issue. An alternative may be to encourage your child to consider a joint account with you. However, this is rarely recommended because of the unintended consequences for taxes, financial aid applications, creditor issues, etc.
Another benefit of a Statutory Durable Power of Attorney is that it will provide access to education information. Again, because your child is now 18, his or her educational information is private. However, you may want to make sure he or she is maintaining their grades and help them get assistance if they are not. Nobody likes to spend their hard earned money on tuition, room and board, meal plans, books, etc. and be surprised to find out their child has not maintained his or her grades and cannot stay in school If you were allowed access through a Statutory Durable Power of Attorney, then you could intercede before it is too late and get he or she the help they need to maintain their schoolwork.
If you will soon be sending a child off to college or have one there now, your child should visit with an attorney focused on this complicated area of law to so they can design a customized plan to fit your child’s needs.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.