Did you know that you are no longer the legal guardian of your 18-year-old son or daughter? Eighteen is the age of majority in Texas, meaning that after their 18th birthday, young adults are presumed competent to make decisions about health care, finances, and other important areas of life.
Health Care Decisions
What does that mean for your son or daughter in their senior year, or graduating from high school and perhaps going off to college? For one thing, it means that you are not necessarily able to make health care decisions on behalf of your child, should they become “incompetent” or incapable of communication as a result of an illness or accident. In Texas, the statutes list parents as one of several people able to make a decision on behalf of a patient regarding the withholding or withdrawal of life-sustaining treatment (life support measures). However, if the situation is not that grave, the statutes do not list parents as able to make general health care decisions for an adult child who is unable to make those decisions for him/herself.
Also, as an adult, your 18-year-old has exclusive authority to make financial decisions for himself or herself. If they own their own car, or are paying for their own college education, or have their own apartment, they have financial affairs from which you can be excluded from handling should your child need unexpected help. Banks, especially, are quite resistant to allowing any access to another adult’s financial information, even if you are just trying to keep your child’s loan from going into default.
How to Protect Your New 18-Year-Old
So what can you do to protect your 18-year-old? Consider having your child execute a Medical Power of Attorney, which names you as his or her agent for medical decisions. The Medical Power of Attorney will only come into effect if your child is certified as unable to make his or her own decisions by an attending physician. So, while you cannot override your adult child’s own medical decision, you can legally step in if your child is unable to make any decision at all.
In addition, consider asking your child to execute a Durable (financial) Power of Attorney which will allow you to handle his or her finances and access his or her accounts, if necessary. Adding yourself as a co-owner, with right of survivorship, or as a convenience signer, on your child’s bank account(s) is also recommended. And though it’s hard to think about, if you are merely a convenience signer, a Transfer on Death designation should be attached to your son or daughter’s account.
The Health Insurance Portability and Accountability Act protects every adult’s medical information from unauthorized disclosure. A HIPAA Release prepared for your child ensures that doctors and hospitals are authorized to share your child’s medical information or condition with you.
Similarly, The Family Educational Rights and Privacy Act is designed to protect a college student’s privacy, but it can leave parents locked out in an emergency. A properly worded FERPA Release can allow parents to talk to school officials and release pertinent educational records and information should they need it. These releases can usually be obtained from the school your child attends.
Finally, if your child is the beneficiary of a trust that is currently paying distributions, or if he or she owns any assets in his or her name, your child may actually need a Will.
Hammerle Finley Can Help
If you have any questions on the above issues, Kendra Rey is an estate planning attorney at Hammerle Finley Law Firm who can help you to explore this topic further and obtain the documents that are right for your family.