Wednesday, July 19, 2017

Before Your Kids Go Off To College, Get These Legal Documents In Place

For college-bound freshmen and their parents, this is an exciting summer, full of anticipation. The kids are becoming adults, and are ready and eager to take responsibility for their own lives.

Amid all this excitement, it is easy for parents to forget that they are no longer the natural legal guardians of their college-age children, and so they are no longer authorized to make personal, medical or financial decisions for them.   At age eighteen, your children become adults in the eyes of the law.

Consider every parent’s nightmare.  You get a long-distance phone call from your child’s college saying your son or daughter has a critical illness or has been in a serious accident.  Then your nightmare gets even worse.  You phone the hospital, only to be told that federal law prohibits disclosure of any confidential information about your son or daughter’s medical condition, even though you are their parent.

You hop on a plane, perhaps assuming that you can take control of the situation when you arrive.  Instead, the hospital still won’t talk to you, and you are told that you cannot make important personal or medical decisions for your unconscious child.  Instead, you will have to go to court to begin the long and expensive process of being named your child’s guardian and conservator.



Don’t let this easily preventable tragedy happen to you.  Urge your college-bound child to get three simple and inexpensive legal documents in place before he or she heads off to school this fall.

HIPAA Release

The Health Insurance Portability and Accountability Act (HIPAA), is the federal law that prohibits healthcare professionals from disclosing your adult child’s confidential medical information to you unless your child has named you (and/or other family members) as his or her HIPAA “agent”.   If you are not named in a HIPAA Release, it does not matter if you are the patient’s spouse or parent, the doctors’ hands will be tied.    If you get that dreaded phone call, this simple release will at least give you immediate knowledge, for better or worse, of your child’s medical status.

Healthcare Proxy

Even if you talk to doctors as your child’s HIPAA agent, you will not be able to make medical decisions for a child who is mentally incapacitated (e.g., in a coma) unless your child named you as their healthcare agent in a legal document called a healthcare proxy (or healthcare power of attorney).

In Massachusetts, a proxy must be witnessed by two persons, neither of whom is named as health care agent.  If no healthcare proxy exists, you will have no choice but to go to court to get appointed guardian of your child.

Durable Power of Attorney

Many parents incorrectly assume they will be able to step in to manage their incapacitated child’s financial affairs, such as banking, car loans and insurance, simply because they remain the child’s principal income source.   Before leaving for college, your child should execute a durable power of attorney, authorizing you – as their “attorney-in-fact” – to handle their finances in their stead.   Unlike a healthcare proxy, which becomes effective only if your child becomes unable to make his or her own decisions, you can use this durable power of attorney immediately, and as a matter of convenience, to assist your child with their finances while they’re off at college.  Once your child is mentally incompetent, however, the power of attorney will be more than a convenience.   Without it, you’ll need to go to court to be appointed your child’s conservator.

Your son or daughter child can carry a wallet card with them, allowing doctors to gain quick phone or internet access to these crucial healthcare documents, even if your child is no condition to communicate.

In most cases, college students’  permanent legal residence does not change while they are attending college out of state, and these legal documents should be created in their state of legal residence.  So before your children head off for college, they should get these three inexpensive documents in place.

You cannot do this task for them, because they are legal adults who must make their own legal decisions.   But once they realize the unnecessary heartache they can spare you, they will appreciate the wisdom of taking these simple and inexpensive precautions.

If you need help in getting these documents in place, please contact our office and we will make sure to connect you with a trusted attorney who can do this for you.

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