My Child is 18, Now What?
High school graduation season is upon us, and although it may look different from what we are used to seeing in terms of pomp and circumstance since we are still dealing with a pandemic, one thing remains the same for these graduates. When they turn 18, they are adults under the law in Maine and have new legal and privacy rights.
This new status means that parents and legal guardians no longer have the automatic legal authority to manage a child’s healthcare or financial life. As parents, under most circumstances, health care providers and financial institutions can no longer provide you with information about your child or take direction from you without your child’s express permission. This is so even if your child lives with you, you pay for their health insurance, and you claim this child as a dependent on your taxes.
Here are a few things to consider as you navigate this new landscape.
While your child was a minor, you had the legal authority to make medical decisions for them as the parent. You choose their doctor, had full access to and managed their protected health information, and decided what courses of treatment to pursue.
Now, however, your child has the legal authority to make their own medical decisions and control who has access to their protected health information. Health care providers simply won’t look to you for direction or even inform you about your child’s health without your child’s permission just because you are the parent.
For some adult children, this new level of control and privacy may be the right fit. For others, however, they still may want mom or dad to have access to their health information so that they can help with making doctor’s appointments or talk with treating physicians about courses of care. In fact, in a New York Times poll of parents of 18-28 year old children, 74% of parents reported that they still make medical and other appointments for their kids.
In order to facilitate a parent continuing to do this for an adult child, the child will need a Health Care Power of Attorney that specifies who can make medical decisions on their behalf and on what conditions. The Health Care Power of Attorney can also incorporate a HIPAA release, which authorizes health care providers to give protected health information to the individuals named in the document.
In particular, a HIPAA release can permit a college infirmary to share a student’s health information with the parents if the student gets really sick. Read here for a cautionary tale on this point.
A Health Care Power of Attorney is important for facilitating every day, non-urgent medical matters for the child, but it is also really important for medical decision making under emergency situations.
In Maine, when an adult is incapacitated, in need of urgent medical care, and has not appointed a health care agent, the law provides for a priority-scheme of decision makers who are authorized to make medical decisions on behalf of the incapacitated person. For unmarried adults, parents are usually first in line for that role. But what if the parents can’t agree on care for the adult child or are divorced and don’t get along? This is not a situation best served by drama and family conflict.
Or what if the adult child is hospitalized outside of Maine? Without a health care power of attorney in place, some states and countries only allow court-appointed guardians to make medical decisions for incapacitated people. Seeking guardianship under these circumstances is expensive and will impose delay on your child’s medical care.
These are the some of the compelling reasons for your child to do some advance planning around health care, especially if they are heading out of Maine to attend college.
When your child turns 18, in Maine, they also have legal authority to manage their financial life and to take title into their own name.
For example, if your child inherited money from a grandparent and the funds were put into a custodial account or you helped your child establish a custodial bank account while they were a minor, in most cases, that account will now be titled into the adult child’s direct name and they will have unfettered access to the funds.
There may not be much that you can do to limit their control over the money, but this is a good opportunity to discuss money management and financial planning. It is also a good opportunity to discuss whether they would like someone else to be able to have access to their financial accounts.
Having a parent or some other trusted adult authorized to access financial accounts is helpful in the event a child is incapacitated and needs someone to help pay bills, complete financial transactions, or file taxes on their behalf. For some adult children, they may want help with these things even though they are fully capable of handling these transactions personally.
This authority is granted under a Durable Financial Power of Attorney. The adult child can decide who serves as their financial agent, under what circumstances, and what powers this agent will have.
Many adult children do not have significant financial accounts at the age of 18, but this is one of those situations where “plan for the worst, hope for the best” advice is applicable. If your child is incapacitated and someone needs access to their financial accounts, and a Durable Financial Power of Attorney is not in place, then relief can only be found through the court conservatorship process. Like guardianship, the conservatorship process imposes delay and court and legal costs. This can all be avoided with some advance planning.
Finally, for adult children entering college, the Family Educational Rights and Privacy Act protects the child’s educational information, including making your child’s grades and academic records private under most circumstances.
Your child can sign a FERPA Release, however, to grant permission to the college or university to share these records with the parents (or anyone else specified). Without this release, a parent may find themselves unable to learn about their child’s academic progress from the school, even if the parent is paying the tuition.
Each academic institution usually has their own FERPA release form.
Before your child heads off to college, reach out to discuss how this sort of advance planning may help your child and your family. I offer flat-fee packages and an easy, streamlined process to get this accomplished before Fall. Schedule an initial call to discuss today!