By Associate Attorney Danielle Nodar

Do you have a child getting ready to start college or already away at school? While going through the college essentials checklist, make sure to consider what your child may need in the event of an emergency, including legal powers of attorney allowing you to make healthcare, financial, or legal decisions for them in event of an emergency. Once a child turns eighteen, the child is considered an adult in the eyes of the law. This means that parents are no longer given access to their child’s financial, health, and educational records without the consent of their adult child. For this reason, it is essential for parents and young adults to discuss the importance of healthcare powers of attorney and durable powers of attorney before a child heads off to college.

A healthcare power of attorney allows a person to name an agent to make healthcare decisions on their behalf in the event that the person is unable to communicate their wishes to their medical providers. This document contains authorizations allowing the health care agent to access private health information while they are acting as agent. Without these authorizations, medical providers are legally prohibited from releasing such information. No parent should be put in the position of being in a different state from their child and being told that their child has been hospitalized, but the hospital is unauthorized to release any other information about the child’s condition or care. A properly executed healthcare power of attorney can avoid this situation and allow parents to easily step in and access medical information during an emergency. This document also allows your child to include instructions relating to their healthcare, including
wishes related to organ donation or wishes relating to religious or cultural practices. The student can keep these documents on file with their university or medical provider so that it can be easily accessed if needed.

A durable power of attorney allows a person to name an agent to make legal, financial, and business decisions on their behalf if the person becomes incapacitated (unable to handle their affairs). The power of attorney can be used to allow parents to help pay a child’s bills, access the young adult’s personal bank account or education records, or manage the child’s finances or legal decisions in the event of an emergency. Without a durable power of attorney, you would not be able to manage your child’s financial and legal affairs during an emergency without petitioning a court to be appointed the child’s legal guardian.

If a child is going to college outside of North Carolina and does not have these legal documents in place, the laws of that state will control who may be able to make decisions on behalf of the child if they are incapacitated. For example, in North Carolina, if an adult does not have a health care power of attorney and is unmarried, the majority of the child’s parents can make healthcare decisions if the child is unable to. This means that parents will be joint decision-makers and must agree on all actions taken by doctors. In North Carolina and most states, there is no default decisionmaker for legal and financial decisions, so a parent must seek to be appointed the child’s legal guardian by the courts. This process is more costly, stressful, and time-consuming than having documents in place before the need for them arises. If your child resides in North Carolina but is going to school out of state, these documents will allow you to act on behalf of
your child in an emergency regardless of the other’s state’s rules on default decisionmakers as North Carolina documents will be valid in another state.

During this exciting time where a young adult is gaining more independence, they may be reluctant to give their parents decision-making power over health or finances. However, they can be assured that these documents only go into effect after doctors certify that they cannot make their own decisions. During normal circumstances, the young adult still maintains their privacy and autonomy over their healthcare and financial decisions; these documents only assist in the event of an emergency. Finally, now that your child has turned eighteen and is getting ready to enter adulthood, it may be a good time for you to review your estate plan to make sure that it still meets all of your needs and goals. Please call Jesson & Rains if you have questions about these documents or want to learn more about protecting you and your child’s interests through estate planning.

​As the summer comes to an end and we start switching gears, there are some important things to remember for your college student.  With the chaos that accompanies getting them back to their college campus, it can be easy to forget about your child's healthcare documents. 

It is important to consider asking them to execute healthcare documents naming you agent.  Once your child is 18 years old, you may not be able to make medical decisions for them or access medical documents.  If you have a child returning to college this Fall, consider giving Jesson & Rains a call to consider your options.  It is never too soon to start thinking about being prepared for all possibilities, and you can have peace of mind knowing that you are prepared.

- By Jesson & Rains Associate Attorney, Danielle Nodar

The beginning of a new year lends itself to reflecting on the year that has passed and setting goals for the future. Come January, we are bombarded with information about New Year’s resolutions and implementing plans to help us transform our resolutions from lofty dreams to our reality.  From health goals relating to diet and fitness, financial goals such as saving for retirement or paying off longstanding debt, even decluttering our homes--there is no shortage of information about what we can do to improve our present and plan for our future.
 
However, one area of planning that many people seem to put off is creating an estate plan. Estate planning involves meeting with an attorney to discuss things like your assets and debts and how they could impact your estate plan; how you want your property distributed at your passing; who will administer the probate of your estate; who will handle your financial affairs and medical decisions if your become incapacitated and are no longer able to make those decisions on your own; and other important decisions that could make a lasting impact on your loved ones.
 
Even if you have an estate plan in place, you should meet with your estate planning attorney every three to five years to review any life changes or changes in the law.  Some reasons to update an estate plan are:
​

• Births – When you have children, you should update your will and/or trust to 1) appoint a guardian for minor children in the event that you pass away before they reach the age of 18, and 2) provide a plan for your children to inherit your assets. Otherwise, under the law, children can inherit all assets once they reach the age of 18. It is also important to make sure you that are not inadvertently leaving out a new child or grandchild from your estate plan.
• Deaths – You may need to replace any deceased beneficiaries, executors, trustees, powers of attorney, and guardians. This not only applies to all your estate planning documents, but also includes documents where you name a beneficiary, such as retirement accounts or life insurance policies.  If a contingent beneficiary is not named for those products, the money will go into your estate, making it available to creditors.
• New disability or illness – If a beneficiary of your estate plan becomes disabled or ill, special planning can be implemented into your estate plan to ensure that these people are cared for and still retain benefits.  
• Marriage – If you are married, you may have to update your estate plan to include your new spouse. It is a common estate planning myth that when a spouse dies without a will, the other spouse will inherit everything.  Instead, a portion of the estate may go to the deceased’s children or the deceased’s parents instead of the spouse.  We also assist in retitling property in an effort to avoid probate.
• Divorce – If you become divorced, make sure your ex-spouse and his/her family is not inheriting or playing any other role in your estate plan. This also includes reviewing your beneficiary designations, such as retirement accounts or life insurance policies.
• Moving to a new state – If you have moved to a new state, does the new state have beneficial laws to incorporate?
• Buying real property in a second state – You may want to upgrade to a trust to avoid multiple probates in multiple states.
• Changes in assets or debts –For example, if your assets have dramatically increased, you may need to see if estate taxes are now an issue. If your debts have increased, you may need to come up with a different plan to shield your assets from creditors.

 
If you have had any major life changes or just want to ensure that your estate plan is in order, make it a goal for 2019 to plan for your future and the future of your loved ones with estate planning. We can help you to ensure that your property is distributed how and to whom you want it to be distributed and to ensure that you are leaving your family unburdened. 

​In honor of that day, we thought we would provide an overview of the healthcare-related documents we draft for our clients in addition to the standard wills and trusts that most people realize are part of jobs.  Additionally, though, estate planning attorneys draft documents that deal with the potential for incapacity during their clients’ lifetimes.  These documents cease to have any effect after the client has passed away, so they are not true estate planning documents if you consider that definition to include only documents that deal with property distribution.  Estate planning attorneys help their clients plan for possible incapacity with the following documents:
 
(1) Durable power of attorney.  In this document, you would name an agent to act in your place as to financial, business, and legal decisions, if you were incapacitated (unable to handle your affairs).   
 
(2) Health care power of attorney.  In this document, you would name an agent to make medical decisions for you in the event you cannot speak for yourself.  It is not necessarily an end-of-life document.  You could be going in for a routine surgery and under anesthesia, for example. 
 
(3) Living Will.  This is an end-of-life document.  You will state under what conditions and terms you do not want to be kept on life support.  If you do want life support (or if you want to leave it up to your healthcare agent), you do not complete this document. 
 
In order to sign these documents, you must have capacity to know what you’re doing.  Waiting until someone is incapacitated to handle this means that you have waited too long.  These documents must be completed in advance of any medical issues.  If you would like more information, please give Jesson & Rains a call.
 

A few weeks ago, viewers across North Carolina were shocked when they saw a story on the news about a mother, Rae Stone, and her son, Forrest.  Forrest had just turned 18 when he was involved in a snowboarding accident that left him in a coma.  The Virginia hospital treating Forrest would not allow his mother to make medical decisions on his behalf or access his medical information due to HIPAA.  According to the news story, the doctors at the hospital were the ones who were deemed to be the decision makers.
 
Clients in North Carolina want to know: Would this happen in North Carolina?
 
The answer is maybe. In North Carolina, the following people, in this order, are authorized to consent to medical treatment on behalf of an incapacitated patient:
 
(1) A health care agent appointed pursuant to a valid health care power of attorney[1] (unless the court has appointed a guardian and suspended the health care agent’s power);
 
(2) A court-appointed guardian;
 
(3) An attorney-in-fact, with powers to make health care decisions for the patient;[2]
 
(4) The patient's spouse;
 
(5) A majority of the patient's reasonably available parents and children who are at least 18 years of age;
 
(6) A majority of the patient's reasonably available siblings who are at least 18 years of age; or
 
(7) An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes.
 
(8) The patient's attending physician.[3]
 
Therefore, if a power of attorney or guardianship does not exist, in the event your unmarried child is incapacitated, you should be able to consent to their medical treatment in North Carolina.  If you are married, you should be able to consent to your spouse’s treatment if they become incapacitated.
 
Given the North Carolina statute, is there any reason why I should fill out a health care directive or appoint my loved one as my power of attorney?  Yes.

1. If you and your spouse are informally or legally separated, the spouse may still be able to make medical decisions on your behalf prior to your divorce. There is no case law on this issue. If you file a health care directive, the hospital must comply with your wishes.  Or you can appoint someone else power of attorney. 
2. The statute calls for a MAJORITY of reasonably available parents or children.  What if these parties disagree?  What if your parents and your children disagree with your treatment?  What if there is an even split, so there is not a majority?  There is no case law on this issue, either.  A health care directive or power of attorney appoints one person as the decision maker.
3. What if you know, in advance, that the person tasked with making the decision on your behalf pursuant to the statute (your husband, for example) disagrees with your final wishes?  For example, your husband would keep you alive on a ventilator, even if you had no chance at survival and you did not want to be kept alive?  If you draft a health care directive, you can direct the hospital to make decisions based on YOUR wishes, not those of your loved one.
4. Under HIPAA, a federal law that applies to medical facilities and patients in North Carolina, a physician may release medical information to family members in an emergency. The hospital is not required to.  If the hospital does not release the information, there is no way the family member can make decisions on the patient’s behalf, as allowed under North Carolina law.  However, a doctor is required to release information to a “personal representative,” which includes people named in a health care directive, health care power of attorney, or durable power of attorney that includes the power to make healthcare decisions.
5. Simplicity.  If you or a loved one are in the hospital, do you really want to risk it?  Do you want to spend your time arguing with the hospital or hiring an attorney to help you?  Probably not.  Having these documents drafted costs very little and does not take much time.  It can save a lot of headache and heartache in the future.

[1] Power of attorney for the sole purpose of making medical decisions on your behalf, or a health care agent named in your advanced health care directive (which outlines your wishes in the event you become incapacitated)..

[2] Power of attorney over  health care decisions (as you appoint).

[3] N.C.G. S. § 90-21.13.