Don’t let this nightmare happen to your family…
It all starts when you receive a call in the middle of the night. The police were on the other end of the phone, and they delivered terrible news – your college-aged loved one had been in an accident. They were injured and are currently in the hospital, but the police cannot provide any more details beyond where they are being treated. You pack up your car and race to the hospital, only to find you cannot get any information about what is happening. You are panicked. Powerless. The fear and uncertainty are overwhelming as you wait and wonder what can be done.
This is a terrifying scenario, but it could be a reality for a parent or loved one of a young adult if they do not have these essential legal documents in place. This article will explain these crucial documents for a young adult’s estate planning and how these specific legal documents can ease your mind family’s mind.
Why You Cannot Get the Information You Need Without These Documents
Why should you even have to worry about estate planning for college students and young adults in the first place? This is the child we are talking about. Surely, as a parent, you have the right to access any medical or legal information about your child in an event such as the one described above.
Sadly, that is not the case.
Before a child turns 18, a parent or guardian serves as their “personal representative.” That position allows a parent to exercise their right to obtain health information, legal and financial information, academic records, and so on.
That changes when the minor turns 18 and becomes a young adult. Various legal protections come into play to protect the new adult’s privacy, including HIPAA and FERPA, which will be discussed below. The result is that the adult child’s parent or loved one can no longer access records that would enable them to help the child in a situation like that described above.
Essential Legal Estate Planning Documents
As difficult as it may be, scenarios like the one presented above highlight the necessity of estate planning for young adults. The question is simple: What can be done to protect this young adult and ensure access to information and decision-making powers are available in their time of need?
Here are the Five legal documents that can help:
- Financial General Durable Power of Attorney
- Healthcare Power of Attorney
- HIPAA Release of Information
- FERPA Academic Information Waiver
- Last Will and Testament
Financial and Legal Decision Document
If an adult child is incapacitated by an accident or otherwise incapable of making financial or legal decisions, they will likely wish to rely on you to handle those decisions on their behalf. For that, you need a single document: a General Durable Power of Attorney.
Financial General Durable Power of Attorney?
When a power of attorney is “durable,” the agent your child elects – i.e., you – has the authority to exercise their powers of attorney even if the principal named in that document becomes incapacitated. In Ohio, power of attorney for young adults is considered “durable” by default, meaning you do not have to worry about jumping through additional hoops to attain the “durable” label. As for creating a durable power of attorney, seek legal counsel to draft the best document to ensure it meets all requirements.
Health-Related Decisions
Given the scenario presented in the introduction, healthcare concerns are likely at the top of your mind when it comes to the critical legal documents your young adult child needs. There are two – one dealing with the HIPAA challenge and another providing you with power of attorney in healthcare matters.
Healthcare Power of Attorney
Where a General Durable Power of Attorney allows the named agent to make financial decisions on behalf of the principal, a Healthcare Power of Attorney does the same regarding their healthcare decisions. The person designated as the agent receives the power to make most healthcare decisions on the document creator’s behalf. However, there is a caveat – the healthcare power of attorney only takes effect when a person’s physician determines they have lost the capacity to make these decisions themselves. Thus, you do not receive carte blanche to make decisions if the principal can make decisions for themselves.
HIPAA Release of Information
We mentioned HIPAA earlier. This term stands for “The Health Insurance Portability Accountability Act.” Enacted in 1996, HIPAA is a federal law that outlines the privacy standards applicable to all U.S. residents. HIPAA will likely limit your access to medical documents, meaning doctors will not disclose any of your adult child’s healthcare information in cases such as the above scenario. Healthcare providers have the option to share information with you if your adult child is incapacitated or otherwise “not present.” However, there is no guarantee they will – the decision is made on a per-case basis. You are unlikely to obtain any information if you are not a biological parent.
As the name suggests, a HIPAA Release allows access to medical information otherwise protected by HIPAA. The release must be signed, and consent must be expressed to access medical records on their behalf.
FERPA Academic Information Waiver
Where HIPAA applies to medical records and decisions, the Family Educational Rights and Privacy Acts (FERPA) offers privacy protections for academic records. This protection extends beyond academic records and into disciplinary, admission, financial aid, employment, housing, and many others not explicitly designated – parents cannot access any of them without their college student child’s consent. The document you need to access this information is a signed FERPA waiver.
A student can choose to sign a FERPA waiver while enrolled. This waiver allows the student to give written consent for access to their educational records, including attendance records, housing details, class and course lists, student discipline files, grades, transcripts, bursar office records, and the student’s college-related financial information.
Last Will and Testament
Thinking about wills may seem strange for a young adult just entering their life’s prime. But that is the point of estate planning for young adults – it allows them to prepare for a future they do not foresee. As such, a last will and testament is the final legal document your adult child should consider creating.
The Ohio State Bar Association defines a will as “a document that sets forth how a person would like to have his or her probate property distributed upon death.” A will can be made by anybody who is at least 18 and of sound mind, and it must be signed and witnessed by at least two people who have no interest in the will. After incapacitation, this document cannot be signed.
Why would a young adult want to create one? Anyone who has a job that offers benefits that can be transferred to a beneficiary—such as Individual Retirement Arrangements (IRAs) or Health Savings Accounts (HSAs)—if no beneficiary is designated, the Last Will and Testament ensure those benefits are passed on to the right person.
Start Estate Planning Today
Estate planning is rarely at the top of young adults’ minds or their parents’ minds, at least until a situation arises that would have been beneficial. With the five important legal documents highlighted here, you can get ahead of the concern and ensure a trusted loved one has access to critical records and the young adult is protected legally, medically, and financially if the worst happens.
Contact Chris Diedling Law to schedule a call at 513-672-6122 to get these documents started. Is your child already on campus? That’s no problem. Online video meetings are available to complete the process.