does my college student need healthcare and durable powers of attorney?

By Associate Attorney Danielle Nodar

While preparing a child to start college in the fall, one important consideration is creating legal powers of attorney allowing you to make healthcare, financial, or legal decisions for your child in the event of an emergency.  Once a child turns eighteen, the child is considered an adult by law, which means that parents are no longer given access to their child’s financial, health, and educational records without the adult child’s consent. In an emergency, a child may not be able to give consent, and having power of attorney documents in place in advance will grant the parent access to their child’s information without having to resort to court intervention.

A Healthcare Power of Attorney allows a person to name an agent to make healthcare decisions on their behalf if the person is unable to communicate their wishes to their medical providers. It also authorizes medical providers to share private health information with a designated 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 Healthcare Power of Attorney can avoid this situation and allows parents to easily step in and access medical information during an emergency. It 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). It can be used to allow parents to help pay a child’s bills, access the child’s personal bank account or education records, or manage the child’s finances or legal decisions in an emergency. Without a Durable Power of Attorney, you would not be able to manage these decisions during an emergency without first being appointed by a court as the child’s legal guardian.

If a child is going to college outside of North Carolina and does not have these legal documents, 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. However, other states may be different. There might not be a default decision maker for healthcare decisions in your child’s state.  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 powers of attorney 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.

Parents should know that the adult child must be the one to hire the attorney, and they are free to name anyone they want to serve in these roles.  For an adult child who may be reluctant to give their parents decision-making power, 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 apply in an emergency. Finally, now that your child is entering adulthood, it may be a good time for you to review your estate plan to make sure that it still meets all of your 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.