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What Happens When Children Fly the Coop?

By Katherine A. David and Scott A. Dondershine
February 2020

What happens when your child graduates from high school and flies the coop? Whether enrolled in college, working in a job, taking a gap year, or traveling, parents lose their legal rights to assist a child when the child turns age 18 and becomes an adult. The sad reality is that this could impede efforts to help a child during a time of need.

We recommend that parents at a minimum consider speaking with their adult children about putting in place three documents enabling parents to help their children.

I. Medical Power of Attorney with HIPAA Authorization. The first and probably most important document to consider is a Durable Medical Power of Attorney (“DMPOA”). Traditionally, the main purpose of a DMPOA is to enable an agent to make medical decisions on behalf of a person that is unable to make an informed decision about his or her medical care. A thorough DMPOA will provide rules for:

  1. Determining when the power of an agent begins and ends.
  2. Standards for making medical decisions.
  3. Authorizing, permitting, giving the agent the authority to receive and review medical records pursuant to a HIPAA consent.

For most adults, we recommend that while the authority to make medical decisions should apply only if a person is unable to make an informed decision, the HIPAA consent to review records should apply immediately. That way if Johnny goes to the campus medical clinic for assistance with a fever or other medical issue his parent can simply fax the DMPOA with the HIPAA consent to the clinic and participate in discussions with the staff caring for Johnny or otherwise review test results and other medical information.

A HIPAA consent signed in advance makes it easier on the student who wants, needs and still relies upon the good advice of his or her parent. In the alternative, without the adult child’s consent, both federal and state law would restrict the ability of a clinic or other provider from disclosing medical information. And, in the worst-case scenario of a child being unconscious and unable to sign a HIPAA consent, a parent could be forced to obtain a court order in order to gain access to medical records.

Giving parents the authority to make medical decisions through a DMPOA is, of course, also critical. Without this authority if Johnny has a condition that has rendered him unconscious, a parent may not be able to participate in making health care decisions on behalf of an adult child. Although state law may provide a parent with some rights even without a DMPOA, if a young adult is deemed incapable of making an informed decision, the rights are generally more difficult to exercise and limited without having a DMPOA in place.

II. Living Will. The second document to consider is a Living Will (also known as an Advance Medical Directive). A Living Will addresses a patient’s end of life health care preferences in the event the patient is unable to communicate his or her wishes. An individual’s Living Will usually addresses the removal of life support, whether nutrition and hydration should continue if life support is removed, and other decisions about end of life care. Although these decisions may be difficult to consider, especially when thinking about a young adult, we recommend all adults have a Living Will in place.

III. Financial Durable Power of Attorney. The third document to consider is a Financial Durable Power of Attorney (“DPOA”). A DPOA generally authorizes an agent to make financial decisions on behalf of a person in the event of the person’s incapacity. A DPOA naming parents as co-agents would provide each parent with the ability to manage a child’s bank accounts, pay the child’s bills (including tuition), sign tax returns, and perform other activities related to the child’s financial and legal affairs.

One issue that arises in drafting DPOAs is whether the authority should be effective immediately or upon incapacity (known as a “springing” DPOA). While some clients prefer a “springing” DPOA, many clients prefer the authority to begin immediately, enabling parents or other loved ones to provide assistance on an as-needed basis, including in the event of an emergency. Without this document in place, a parent may have to go through the court system to be named a guardian or conservator for their child if their child is incapacitated. Not only could that process be expensive, but it may cost the parent valuable time when time is of the essence.

IV. Summary. We strongly recommend that parents speak with their children about the benefits of having the documents described above in place. The documents are not only important in the event of an emergency but are also important for a parent to be able to provide much needed help to their children that have recently become adults. Please contact our firm if you or your adult children have any questions about the information in this Client Alert.

This Client Alert is intended as an introduction only to the topics addressed – it is not a full discussion of the issues presented. Let us know if you want to discuss the issues in this Client Alert in greater detail or have other questions.

DISCLAIMER. This Client Alert does not provide legal advice. We are providing it for general informational purposes only.