As the summer progresses, preparations for going back to school will begin to start soon.  As part of this, college-age children should be sure to have certain legal documentation in place.  If your son or daughter is over the age of 18, then he or she is considered an adult by the Commonwealth of Massachusetts and by the majority of other states.  As an adult, your child is entitled to medical and financial independence and privacy.  Unfortunately, this means that, should your child suffer physical or mental impairment, even temporarily, it will be difficult – if not impossible – for you to make important medical and financial decisions on his or her behalf.   You may not even be unable to obtain medical information about your child without a court order.  Thus, while no parent enjoys thinking about his or her child being involved in such a crisis, it is important to prepare for the unthinkable.  A college-age child can prepare effectively by executing the following three legal documents:

  1. Health Care Proxy

A Health Care Proxy is a document in which the child appoints a person, typically a parent, to make important medical decisions on the child’s behalf in the event that he or she is unable to do so.  A Health Care Proxy can be enhanced by a Living Will, wherein a child may express his or her wishes regarding treatment decisions.

  1. HIPAA Authorization

A Health Care Proxy is of limited value without a Health Insurance Portability and Accountability Act (“HIPAA”) Authorization.  The term “HIPAA” refers to a federal medical information privacy statute. Without a HIPAA Authorization, a child’s medical care providers may not disclose his or her medical information to anyone, including a parent.  This is true even if the child is covered under your medical insurance and even if you will be paying the medical bills.  Consequently, it is imperative for your child to sign a HIPAA Authorization in order to give health care providers permission to disclose this private information to you.

  1. Durable Power of Attorney

A Durable Power of Attorney is a document by which the child gives another person the ability to act on his or her behalf regarding financial and legal matters, regardless of whether he or she is able to make such decisions.  Should your child become unable to manage his or her financial and legal affairs, including bank accounts, lease agreements, student loans, and filing of taxes, a Durable Power of Attorney enables you to step in and handle such matters directly.

In addition to being invaluable in case of emergency, a Durable Power of Attorney may also be a source of great convenience for a college-aged child and parents.  Students frequently travel across the country or even abroad during college, and in such situations a Durable Power of Attorney ensures that a parent is able to transfer assets, access bank accounts, speak with school finance departments, contact local embassies, and manage any other issues that may arise in the child’s absence.

If your child does not wish to give you such sweeping, immediate authority, a Springing Power of Attorney provides the same protection, but only “springs” into power under circumstances set forth in the document.  Most frequently, a Springing Power of Attorney will spring into effect when two doctors have certified in writing that your child is incapacitated.  However, though a Springing Power of Attorney may sound more attractive to your son or daughter, it has some disadvantages.  Specifically, third parties may be reluctant to rely upon the document and it may be difficult to obtain the necessary doctors’ certifications, as many physicians are reluctant to make such an important determination.

If your child has not signed these important documents, you should consider having him or her do so.  Please contact any of the attorneys in Pabian & Russell, LLC’s Estate Planning practice group if you would like to discuss these issues in more detail.