You probably don’t need another reminder that your baby isn’t quite a baby anymore, but here it is. If you have a child that is going off to college soon, chances are good that they are over the age of 18 and are a legal adult. And whether you’re still paying the bills or not, as soon as they turn 18 years old, you no longer have any authority–at least legally–over any aspect of their life. Without proper planning ahead of time, this leaves them particularly vulnerable in the event of an emergency.
Every kid heading to college needs an estate plan consisting of the following 4 documents: Advance Health Care Directive, HIPAA Release, Durable Power of Attorney for Property, and (if they have any sort of assets in their own name) a Basic Will. I like to call it a “POWER PACK,” because with these documents, your child can state who will have the legal power to act on their behalf if they are unable to act for themselves with regard to their health care or finances. They may appoint you, their parent, or they may appoint some other trusted adult to serve as their agent.
Think about it. What happens if your kid breaks their arm doing a keg stand at a party, or is hit by a drunk driver on their way home from the library, and they’re sent to the hospital? If they are an adult, the doctors don’t have to tell you ANYTHING, let alone honor any decisions you want to make for their care if they’re incapacitated. In fact, if you have not been named as their Health Care Agent, you may even have to go to COURT to be able to intervene. Sounds crazy, but that’s the law. And it’s something that can be avoided with the right planning ahead of time.
Let’s break down the four Power Pack documents and why your kid needs them:
Power Pack Document #1: Advance Health Care Directive
In an Advance Health Care Directive, you designate someone to serve as your Health Care Agent (also known as Medical Power of Attorney) to make decisions for you relating to your person or medical care. Your child may have certain preferences when it comes to their treatment, pain, and (not to get too scary here), life support– this document gives them a place to state these wishes so they can be honored. Without it, medical personnel will do what they think best without consulting anyone or, depending on the situation, will have to convene an ethics committee, which may cause an undue and harmful delay in serious matters.
Power Pack Document #2: HIPAA Release
A HIPAA Release doesn’t give anyone decision-making authority. What it does do, though, is give your child’s medical team the ability to share medical information and records with you (if you’re on the list of authorized recipients). Your child may or may not want you to have this kind of access, but you should encourage them to choose a few people they trust for this purpose, particularly for situations in which they cannot make that choice for themselves in the moment.
Power Pack Document #3: Durable Power of Attorney for Property
A Durable Power of Attorney designates an agent to act on your behalf with regard to your property or financial affairs if you lack capacity. Presumably, your college kid is entering into some grown-up contracts for the first time in his or her life: rental agreements, utility bills, credit cards, student loans, part-time job, etc. If something happens and your child is not able to pay his bills, who can step in and manage things? Mom and Dad: Unless you are on the lease, on title to the bank account, a co-signer on the loan, etc- you will not have access! Your kid needs to give you that authority.
FYI, the “durable” part of this means it stays effective when the principal (the person who signed the document) is incapacitated. The power can either be immediate (effective immediately upon signing) or what we call “springing” (effective at incapacity). Either may be appropriate depending on the unique circumstances.
Power Pack Document #4: Basic Will
I know it’s almost impossible to think about the scenario in which your kid needs a Will, but if they are taking the time to do the other Power Pack documents, they might as well execute a basic will too. In their will, your child can choose: Who do I want to handle everything if I die? And- perhaps more important to them- Who do I want to get my stuff? Your child has things and possessions (and often, cash) that they would like to go to certain people if it came to that.
Under California law, parents are the first in line to be beneficiaries of their child’s assets if they die without a spouse or children of their own. This might very well be what your child wants anyway. However, if they have significant cash or investments in their name, do they want the opportunity to leave their own legacy? (Side note, if it is actually significant in value, they may want to consider a trust, too, to avoid probate court). Even if they don’t, do they want certain people to go through their things? To NOT go through their things? It can be empowering to do this for yourself. Weird, but empowering.
How to Get Started
As an estate planning lawyer, I help individuals and families get these important documents in place through a step-by-step, guided process. While a good lawyer can definitely help you (or your child) avoid classic planning mistakes, you should know that most states have statutory forms that can be found for free or low cost. If you live in California, or if your child is headed to Cali for school, I’d love to help.
