Once a child reaches the age of eighteen they are viewed as legal adults for most purposes, yet they often remain dependent upon their parents for support and guidance. Regardless, once they have reached eighteen years of age we, as parents, lose much of our ability to make decisions for our child unless you establish a college student estate plan.
Medical Decision Making
Some of the changes you will face as a parent is that your child’s physician and other healthcare workers are no longer able to talk to you about your child’s condition or follow your wishes regarding treatment or consent. Without a college student estate plan your child’s medical records are not available to you. In the event of an accident or illness or other mishap that leaves your child unable to determine his or her own course of treatment, your only choice may be to seek a court order.
Financial Transactions
Financial institutions, utility providers, and landlords will not typically permit an individual to access funds or information when they are not on an account. This means that if your child is unable to act on their own behalf for an extended period of time, their affairs might go unaddressed. Even though your eighteen-year-old may not have much in the way of wealth or possessions, they are vulnerable and in need of estate planning just much as any other adult.
Durable Power of Attorney for Healthcare and HIPAA Release
HIPAA and other patient privacy laws prohibit medical personnel and other from sharing information concerning their patients, even when that patient is your eighteen-year-old child. A power of attorney is a document that allows a person to grant the authority to act on their behalf to another person. A HIPAA release provides healthcare providers the necessary consent to share information about their patient’s condition and treatment options.
With a valid and properly executed durable power of attorney and HIPAA release, your now adult child can provide consent and grant authority to their parents and healthcare providers so that in the event they are unable to make decisions for themselves their parents will be in a position to do so on their child’s behalf.
Durable Power of Attorney for Finances
A power of attorney for finances grants authority to allow a person to transact on behalf of another. If your adult child grants power of attorney, then you would have the authority to pay their rent, utilities, credit card bills, and attend to other financial obligations.
Comprehensive Protection and Other Considerations
We draft very few estate plans without including a living trust and we do that for very good reasons, but one area of exception are the college student estate plans because they often own few assets. The primary benefits of a living trust upon death is that it allows assets to transfer without the need for probate and the ability to maintain privacy. The majority of college students have few assets and expedited proceedings may be available to secure a court order allowing for the transfer of the student’s property, making the benefits of a living trust less of a concern.
While a living trust might be unnecessary, consideration should be given to establishing a last will and testament. This document directs where property should go in the event of the student’s death rather than leaving that determination to the state’s intestacy laws.
FERPA Waiver
Consideration should also be given to a Family Educational Rights and Privacy Act (FERPA) waiver. Upon turning eighteen your child will become an “eligible student” under FERPA, which is a federal law that protects the privacy of academic records. Parents are allowed access to their child’s records under FERPA until they turn eighteen, at which time the rights transfer to the student. A FERPA waiver can be used to permit parents or others access to grades and transcripts.
Avoiding Risks and Establishing Effective Protection
Some states offer statutory forms that can be used to create some of these documents, but it is important to familiarize yourself with your state’s specific requirements. Failure to follow your state’s requirements closely can result in the document being invalid. Also, while these statutory forms or forms prepared by document drafting services may accomplish some of what is needed, these documents will not be tailored to the specific needs of your child and your family. For these reasons, our recommendation is that you work with a qualified estate planning attorney to establish a college student estate plan.
College Student Estate Plan Presentation
Attend a complimentary online presentation to learn more about the reasons why your college-aged child needs to establish an estate plan and how it will empower you to take care of your child when they are not able to.
About Christopher Smith
Christopher Smith is an attorney serving clients in California with estate and business planning needs. He can be reached at https://clslaw.com with questions or comments. If you would like to discuss establishing a college student estate plan, you can schedule a 15-minute call with him at https://clslaw.com/schedule.
