So, you’ve made 12 trips to Bed and Bath for their sheets, towels and other dorm supplies. You bought her the computer and arranged for the bank account near campus. However, there are a couple of crucial legal documents that you may have overlooked when helping your son or daughter to prepare for his or her freshman year. Are you able to manage the financial and health care matters for your child in the event he is unable to? If your child is 18 years old, then you no longer have the legal authority to make his or her healthcare or financial decisions. It is necessary therefore, to have Durable Powers of Attorney for Healthcare and Financial Affairs. Under the Durable Power of Attorney for Financial Affairs, your child, as the principal could appoint you as his agent to manage his finances if he were injured. The Durable Power of Attorney for Healthcare enables the Patient (your child) to appoint a Patient Advocate to make any and all healthcare decisions should he or she become incapacitated.
A recent case out of Colorado illustrated the importance of these documents. In this case, a young adult male sustained a severe brain injury in a motorcycle accident. He required round the clock care. He needed a guardian to handle his medical decisions and a conservator to bring suit on his behalf for his injuries and handle his finances. Both the young man’s parents and his girlfriend of 9 months filed petitions with the probate court to be appointed in these roles. Strangely enough, the girlfriend was appointed as his guardian and conservator. As the mother of three boys, this would be my ultimate nightmare. I do not see this as a typical outcome in the probate court, however, any time you put decisions in the hands of people who don’t know you (i.e. judges), you risk that those decisions might be inconsistent with your wishes. Now, judges will always try to act in the best interest of the incapacitated person, but the court does not “know” you and does not know what you would have wanted. So what is the lesson? Make sure your college students execute Powers of Attorney before leaving for school. And if you’re anything like I am, you’re going to subtlely suggest (or perhaps not so subtlety) that they appoint you as their agent! It will give you great peace of mind knowing that this issue has been addressed. At KRGlegal, we can assist your college bound student in these matters.
Thank you to all my clients with adult children! During the past few months I have worked with many of my client’s adult children to prepare their estate planning documents. I commend these individuals for recognizing the importance of being prepared in the event of incapacity.