Your eighteen-year-old may still feel like a child, but once he or she reaches the age of 18, they are an adult in the eyes of the law, with the right to make their own medical and financial decisions. More importantly, when they reach the age of 18, you are no longer entitled to access their medical and legal documents. You also have no legal authority to make decisions on their behalf regarding medical treatment. This might not be a problem while he or she is healthy and able to share information with you on an “as needed” basis. However, it’s important to have these three documents in place in the event of an unexpected emergency or other life event.
1. Health Care Proxy with HIPAA Release in Massachusetts
Under the Health Information Portability and Accountability Act, or HIPAA, once your child turns 18, their health records are now kept private between the individual and their health care provider. HIPAA laws may even prevent you from even getting medical updates in the event your son or daughter is unable to communicate their wishes to have you involved. Without a HIPAA release, you might even have difficulty getting critically needed information, such as whether he or she has been admitted to a particular medical facility.
Should your son or daughter suffer a medical crisis resulting in an inability to communicate, doctors and other medical professionals may refuse to allow you to make medical decisions for them. You may even be forced to hire an attorney to petition for guardianship with the local probate court. In these situations, the last thing you want to worry about is the court process of obtaining guardianship, which can be expensive and time-consuming.
A health care proxy with a HIPAA release would enable your son or daughter to designate you or another trusted person to make medical decisions in the event they become unable to convey their wishes.
2. Durable Power of Attorney in Massachusetts
Like medical information, your 18-year-old’s finances are also private. Without a durable power of attorney, you cannot access her bank or credit card information to make sure bills are being paid. In an emergency, if you needed to access financial accounts, you would need to petition for conservatorship with the probate court.
Absent a crisis, a power of attorney can also be helpful in situations when your child is away from home, either at college or traveling. For example, if your child is traveling and an issue comes up where she cannot access their accounts, a durable power of attorney would give you or another trusted person the authority to access them on their behalf. An alternative may be to set up a joint account with your child, but this is rarely recommended due to the potential tax and estate planning implications. (This could also affect financial aid.)
3. A Will in Massachusetts
Upon reaching the age of 18, people have full access and authority over any funds in their name. In the unlikely event that your son or daughter predeceases you and has no will, their assets will pass to their heirs at law. In Massachusetts, typically you, as parents, are the heirs at law. If you have created an estate plan that reduces your estate for estate tax purposes or for asset protections purposes, the receipt of those assets could frustrate your estate planning goals. In addition, your child may wish to leave tangible property and financial assets to specific other family members, significant others, or to charity.
No one likes thinking about something bad happening to their children. However, ensuring that your child has an estate plan in place means that in the unlikely event of an emergency, you can focus on your child and not be distracted by unnecessary court proceedings and red tape.