Legal Challenges You May Face in the Battle for Information of an Adult Child
Guest Post by Lauren T. Millovitsch, Esq. (learn more about Lauren at the end of this post).
Fall is upon us. The weather is getting cooler, the days are getting shorter, and our children are headed back to school. As you get ready to send your kids off to college, you may wonder how they grew up so fast. In fact, you probably still think of them as your babies. However, once they’ve turned eighteen, most states consider them adults. As a result, parents lose the automatic control and protection they once had over their children’s health care, finances, and education.
Outlined below are a few areas where you lose some of your decision-making power once your child turns eighteen and a few simple documents which can be drawn up by an estate planning attorney to give you back this control.
The Health Insurance Portability and Accountability Act, or HIPAA as it is widely referred to, provides rules regarding the release of medical information. Most people embrace HIPAA, as they would not want their medical information released to others without their express permission. However, once your child turns eighteen, HIPAA applies to their medical information as well. As a result, you may not have access to their medical records or the right to receive updates on your child’s health care in the event of an emergency.
To ensure you have access to your child’s medical information and may make medical decisions on their behalf, you should talk to your estate planning attorney about preparing the following documents for your children who are eighteen or older:
- Health Care Power of Attorney. This document will allow a parent to communicate with doctors, hospitals and other medical staff in the event the child is incapacitated and to direct medical care.
- Living Will. This document authorizes the termination of life support based on criteria the child sets in the document, and could give the parent the power to override this document
- HIPAA Release – This document gives a parent access to the child’s medical records and allows a parent to communicate with medical personnel about the child.
Legal & Financial Matters
A parent’s right to know, monitor, advocate and intercede in the legal and financial affairs of their child generally ends once that child turns eighteen. So you have no right to find out the balance of that credit card in your child’s name that is supposedly only for emergencies. And if your child becomes incapacitated, you have no power to act on their behalf, whether it is to gain access to their finances or to sign legal documents.
To ensure you have the power to act on behalf of your child with respect to their legal and financial matters, you should talk to your estate planning attorney about preparing a Durable Power of Attorney for your children who are eighteen or older. This document will allow a parent, in a fiduciary capacity, to perform any act on behalf of the child, including the power to access bank accounts, direct investment activity, sell property, execute legal documents, sign tax returns, and much more.
Similar to HIPAA, the Family Educational Rights and Privacy Act (FERPA), provides rules regarding access to students’ educational records. For many parents, especially those paying for their child’s college education, there is an expectation that they have a right to see grade reports or disciplinary matters. However once your child turns eighteen, without their express permission, you may not be allowed access to this information.
To ensure you have access to your child’s educational records, you should have your children who are eighteen or older execute a FERPA Release. This document gives parents the right to inquire and view a student’s educational records. Colleges will often have their own version of this form readily available in their administration offices. If your college does not have such a form available, your estate planning attorney can prepare a general FERPA Release.
Lauren T. Millovitsch is not affiliated with FSC Securities Corporation or Preferred Financial Strategies, Inc.
Lauren T. Millovitsch, Esq. is an estate planning attorney with Blanco Tackabery & Matamoros, P.A. In addition to preparing general estate planning documents, she advises clients in the areas of estate, gift, and generation-skipping transfer taxes, as well as charitable and business succession planning.
To contact Lauren or find out additional information about Blanco Tackabery & Matamoros, P.A. and its services, please contact:
Lauren T. Millovitsch, Esq
Email: [email protected]
150 Fairview Road, Suite 320
Mooresville, NC 28117
Phone: 704.696.2160 Fax: 704.696.2165