Graduation season is upon us. Many recent high school graduates will be enjoying these next couple of months of summer vacation before heading off to college and beginning the next phase of their lives. Many view the end of high school as the beginning of adulthood. New York State can for, all intents and purposes, be counted among those who believe adulthood begins after high school, because in New York State when a person reaches age 18, typically high school graduation age, that person is now considered an adult. This means that parents are no longer given access to their children’s financial, health and school records, without the consent of their now adult child. For this reason it is essential for parents to advise their children to sign a health care proxy and a power of attorney, before dropping them off on campus.
Health Care Proxy
A health care proxy appoints someone to be your health care agent. Your health care agent can make medical decisions for you in the event you cannot make those decisions for yourself. It is essential that your child execute a health care proxy appointing either you or your spouse as their health care agent. This way, should the unthinkable happen, you will be able to step in and make health care decisions for your child.
It is essential that any health care proxy that your child executes contains language that conforms with the Health Insurance Portability and Accountability Act of 1996 (better known as “HIPAA”), to allow you to access their medical records and/or receive their medical information, in the event they are incapacitated and cannot communicate with you. The purpose of HIPAA is to prevent the unauthorized access of an adult’s private health care information. Without a health care proxy with language that specifically allows the health care agent to access medical records, health care providers are legally prohibited from releasing such information. No parent should be put in the awful position of being hours away from their child and told their child is in the hospital, but the hospital cannot give them any information about their status or care. A properly executed health care proxy can avoid this.
You can only appoint one health care agent at a time. However, you can appoint one or more back up health care agents, that can act in the event the first health care agent is unable to act as health care agent. Again, since only one health care agent can serve at a time, the backup agents will serve as health care agent in the order of appointment. So, your child could appoint you as their health care agent and appoint your spouse as their backup or successor health care agent and could even appoint a third important adult in their life as a further backup in the event neither you nor your spouse could serve as health acre agent.
Durable Power of Attorney
A durable power of attorney appoints an attorney-in-fact to handle your financial affairs if you cannot. Since the power of attorney is “durable” it remains in effect even after the person whom has given the power becomes incapacitated. The usefulness of a power of attorney can be immense. The power of attorney can be used for such innocuous things as helping your child with banking, by transferring money into or out of their personal bank account, to as serious as managing all of their financial affairs if they were to become incapacitated. In the event of incapacity, without a power of attorney you would not be able to manage your child’s financial and legal affairs without petitioning the court for guardianship.
Out of State Students
Each state has its own power of attorney and health care proxy form. For example, the document that is called a health care proxy in New York, is called a Declaration of Health Care Surrogate in Florida. If your child will be going away to school outside of New York State you may want to consider executing a health care proxy and power of attorney that conforms with the form of power of attorney and health care proxy in the state in which your child will be going to school. If your child were to execute a New York form power of attorney and health care proxy, it should be acceptable for use in whichever state they attend school, but you may wish to have your child execute a power of attorney and health care proxy for both New York and the state in which they will attend school, just to be on the safe side.
Other Considerations
As I stated in the beginning, your child is now an adult, so ultimately who they choose as their health care agent and attorney-in-fact, is up to them, including if they even want to execute a power of attorney and health care proxy. Also, your child can revoke or amend their power of attorney and health care proxy at any time, as long as they have capacity. So, it is important to frame any discussion with your child about executing a power of attorney and health care proxy, with the fact that you want to have these documents in place to help them if they need help.
You may want to revisit your child’s power of attorney and health care proxy every couple of years to make sure the form of the document has not changed and that the appointed fiduciaries still make sense. Additionally, now that your child is off to college and has reached age 18, this may be a good time to review your own estate plan to make sure it still meets your estate planning goals.
While I doubt a health care proxy and power of attorney will be listed on any dorm room essentials list, each document is critical for parents sending their students off to college, to ensure that in the event of the unimaginable you as your child’s parent will be able to step in, be provided with much needed information, and be able to handle their affairs. The estate planning attorneys at Twomey, Latham, Shea, Kelley, Dubin & Quartararo are available at your convenience to walk you through your options to best plan for your college bound child, answer your questions and your child’s questions, and draft the best documents to protect your child’s interests.
