Can you make decisions for your young adult child if they have an accident or become seriously ill? When a child has reached the legal age of adulthood (in Maine, that's 18 and older), parents have fewer rights over them than they do over minors.
If your young adult child becomes unconscious and can't give consent for their care and you lack the authority to do so, you may have little say in their treatment. In another scenario, your son or daughter could be attending college in another state. If they want you to do things for them while they're away, such as signing checks or a lease for an apartment, you might not be able to without proper documentation.
College-age children may own few, if any, major assets, such as a home or a car. They might not need a will or a trust now, especially if the total value of their assets falls below the amount required to file for probate. However, they should at least have an incapacity plan, and if you don't have one, you should, too. You can both secure your futures together, and you'll feel better that you're protecting your rights and your child's needs.
Forming an Incapacity Plan
An advance directive and a durable power of attorney authorize you to act on behalf of your child. It doesn't cost much to set them up and change them later when major life events like a marriage or a birth occur.
The advance directive (also called a power of attorney for health-care or living will) names an agent or health-care proxy to make medical decisions for someone if they become incapable of doing so. The decision-maker can decide on:
• Where the patient will receive care (in a hospital, at home, in a nursing home, or another facility)
• Which doctor to see
• Whether their loved one will have surgery
• Which medicines to give
• End-of-life care
• Whether to make an organ donation
A living will may already offer instructions for handling certain situations, like if someone can't breathe on their own. It should be on file with your child's primary care physician, and if they attend one, at your child's school. Before you set one up, planning how you will broach the discussion about a living will can ease the process.
The Health Insurance Portability and Accountability Act (HIPAA) prevents the release of private health information without authorization. A living will may include a HIPAA release or the waiver can exist as a separate form. It authorizes you to get updates on your child's medical status and to release their medical records or transfer them to another provider.
A durable power of attorney gives a person the authority to act for someone else in financial and legal matters, such as accessing bank accounts and signing contracts.
Every adult should have an incapacity plan. It removes the need for a temporary or permanent court-appointed guardian or a conservator who might not make decisions in a person's best interest. Naming an agent to act for you before something happens prevents others from making decisions that could go against your wishes and reduces the possibility of legal disputes.
You and your child can create your plans together -- make it your gift to them. Unfortunately, tragedy may strike anyone at any age. Before anything happens, being prepared can relieve worries and prevent a potentially serious situation from becoming worse. An experienced and knowledgeable estate planning attorney may help you make the right decisions to ensure a brighter future. Contact us online or call us today at (207) 377-6966.
