Why Does Your Adult Child Need to Have Legal Documents Prepared?

No one stops being a parent when a child turns 18. However, your legal rights to some of your child’s confidential records are limited when the child turns 18, and you’ll need to ask a Melrose estate planning attorney to prepare the legal documents that will let you access those records.

A healthcare provider, for example, is not legally allowed to speak with you about your adult child’s medical records, health condition, or recommendations for treatment unless you have the right legal document. You will need a different document to access your adult child’s bank accounts, and yet another document to access your adult child’s educational records.

Which legal documents do 18-year-olds need to prepare? What can happen if your adult child does not have these important legal documents prepared in advance? Keep reading this brief discussion of 18-year-olds and the law in Massachusetts for the answers your family may need.

Which Legal Documents Will an 18-Year-Old Need?

Even if your 18-year-old still attends high school or still has coverage through your health insurance, when a child reaches age 18, a parent’s automatic legal right to that child’s protected records – academic, financial, and medical – abruptly ceases to exist.

Parents must have an adult child’s legal consent – in the form of several legal documents – in order to access those records. When your child turns 18 in Massachusetts, have a Melrose estate planning lawyer prepare these documents for that child:

  1.  a HIPAA waiver
  2.  a durable power of attorney
  3.  a healthcare proxy
  4.  a FERPA waiver

What is a HIPAA Waiver?

Under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), a healthcare professional may not provide an adult’s medical information to a third party without a signed authorization – a HIPAA release form.

The law protects an adult’s medical and health insurance records as well as billing data. Doctors, medical facilities, and insurance companies must have a signed HIPAA authorization before they can disclose your medical information to third parties, even to loved ones.

A HIPAA authorization document allows insurance companies and healthcare providers to share your personal medical information with the people you trust. If your child is turning 18, have a Melrose estate planning attorney prepare a HIPAA authorization for that child.

What is a Durable Power of Attorney?

Preparing a durable power of attorney document is important because anyone may be abruptly injured, unexpectedly disabled, or even fully incapacitated. A durable power of attorney allows your financial affairs to be conducted even if you are disabled or incapacitated.

Preparing a durable power of attorney entails naming an agent (or “attorney-in-fact”), someone who will pay your bills, conduct your banking, make decisions regarding your real estate, and generally oversee and protect your finances.

If you are unable to make the financial decisions that must be made for your family and yourself, your durable power of attorney authorizes the agent you have chosen to make those decisions for you and to protect your financial interests. Without a durable power of attorney, your family may have to ask a court to name a guardian or a conservator to make those decisions for you.

What is a Healthcare Proxy?

A healthcare proxy or healthcare power of attorney is a legal document that can name you, the parent, as your adult child’s “medical agent.” If your adult child is unable to make medical decisions, a healthcare power of attorney lets you make those decisions on your child’s behalf.

Without a healthcare proxy document, a parent may have to petition a court to be named as the child’s guardian or conservator – at a stressful time when healthcare decisions may have to be made quickly.

Preparing a healthcare proxy in advance for your adult child can give a parent genuine peace of mind. When your child turns 18, ask an estate planning lawyer to prepare a healthcare proxy document for your child.

What is a Living Will?

A living will is very different from a last will and testament, and it is also somewhat different from a healthcare proxy or medical power of attorney. In most states, you can express your detailed wishes for end-of-life care in a living will document.

However, Massachusetts is one of the few states that does not recognize living wills. If you prepare a living will in Massachusetts, there is nothing in this state’s laws that obligates your medical providers to adhere to your instructions.

You can, however, spell out some instructions to your medical agent in your healthcare proxy. What’s important is to name an agent you trust to protect you and your interests – someone like a parent, for example.

What is a FERPA Waiver?

When a child turns 18, he or she genuinely must have a HIPAA waiver, a durable power of attorney, and a healthcare proxy prepared by a Massachusetts estate planning attorney. A FERPA waiver, however, is optional, but your family may choose to prepare such a document.

The Family Educational Rights and Privacy Act (FERPA) keeps educational records – grades, test results, and disciplinary actions – private. It lets parents access these records and request corrections, and it determines who else may see these records while your child is still a minor.

When your child turns 18 (or enters a college or university at any age), that child’s academic record is exclusively his or hers, even if you pay the tuition. Colleges and universities will not release records to a parent without a student’s consent – a FERPA waiver.

Many parents insist on a FERPA waiver in order to stay involved in their child’s education. Others assume that their child’s education, after the child turns 18, is up to the child. Discuss the FERPA waiver with your adult child and decide together what is best for your own family.

What’s Important to Remember?

Your child will always be your child, but when your child turns 18, he or she is an adult according to the law.

Obtaining the signatures and preparing the documents that you may need if an emergency arises is simply the smart thing to do. It also provides an outstanding opportunity to discuss your adult child’s personal concerns, goals, and expectations.

To learn more about these documents or to prepare the documents and make them legally binding, schedule a consultation with a Melrose estate planning lawyer before your child turns 18. If your child is already an adult, the time to schedule that consultation is now.