For most parents (and their 18 year-old children), estate planning isn’t something they are thinking about.  Many parents think that because their child does not have anything of value yet or may not have children of their own, that these children do not need an estate plan. However, once your child turns 18, they are no longer a minor in the eyes of the law–they are now adults. Becoming an adult comes with certain privacy rights and independence under the law.

Health care information and records

For example, if your child becomes ill while away at school or on the job, your ability to direct their care is not automatic, as it has been previously. An 18 year-old has rights under HIPAA (Health Insurance Portability and Accountability Act) and medical professionals will require a release to be signed by your child before sharing their health care information or records (medical and mental) with you.

Medical and financial decisions

In the event your child is incapacitated, even temporarily, he or she will be unable to consent to you accessing their vital health records or authorize you to make decisions on their behalf. In the absence of such an authorization or release, court intervention is usually required in order for the parent to step in and make medical and financial decisions for their child. In absence of the estate planning documents described below, the parent would need to file a conservatorship petition with the court to be named as the child’s legal guardian. This process is lengthy, expensive, and emotionally draining. In order to avoid this court proceeding, it is a best practice to have your child put their wishes in writing as soon as they reach the age of majority.

What you can do about estate planning for your 18-year-old

There are two critical documents that any adult over the age of 18 should have:

1. Medical Power of Attorney/Advance Directive with a HIPAA provision – This document appoints an “agent” or “agents” to make health care decisions, including end-of-life care decisions on your child’s behalf. It also offers direction as to the decisions they would like their agent to make, such as organ donation preference and pain relief, to name a few.  This document should include a HIPAA release authorizing the agent to access important health records and may also incorporate provisions regarding mental health care. For more information regarding the Advance Health Care Directive, please refer to our previous article about the nature and purpose of an Advance Health Care Directive.
2. General Durable Power of Attorney – This document appoints an “agent” or “agents” to make financial decisions on your child’s behalf. This may include granting the agent(s) access to bank accounts, scholarship funds from school, rental agreements or other similar accounts. For more information regarding the Durable Power of Attorney for Finances, please refer to our detailed post on durable power of attorney for finances.

In summary, there is no time like the present to plan for the future. Doing so with your children might seem awkward at first, but an honest and mature discussion on the subject is a great way to acknowledge their new-found adulthood and reinforce their independence.

If you have any questions, let’s discuss them!

The Law Offices of Irina Sherbak offer you the opportunity to ask your questions to an experienced estate planning attorney in San Diego in a FREE 30-minute consultation. Call us!