A different kind of graduation present

Congratulations! It’s graduation season!

Before you get too misty-eyed wondering when your baby turned into the lovely young woman or man standing on stage getting a diploma, you may want to consider a different kind of graduation present for the new graduate.

An estate plan.

The hard, cold reality is that once your child turns 18, you have no legal right to access your child’s medical, financial or academic information unless your child has given you such powers in writing. If your child does not have a Durable Power of Attorney (DPOA), Health Care Proxy (HCP) and HIPAA Release¬†granting such powers over such information, you may have a crisis on your hands if your child becomes seriously injured or incapacitated and cannot care for himself.

If your child is seriously injured or decides to study abroad, you would need a DPOA to make sure that his bank account is managed, the lease on his apartment is cancelled, get access to his mail if he forgets to change his address, deal with his car insurance, control his student loans, and otherwise control all those matters which may require his signature. The DPOA would also allow you to bring suit on your child’s behalf if he is seriously injured in an accident and is unable to direct a lawyer. The DPOA also should give explicit authority to access academic records, so that you can deal with the college or university. Without a DPOA, you will need a conservatorship from the Probate Court to manage an incapacitated child’s affairs, which is never a quick-and-easy process due to procedural requirements and the cutbacks in staff at the courthouses.

The HCP and HIPAA Release grant you access to your child’s health and medical insurance information. This access would be crucial if your child is seriously injured and unable to speak for himself. Without that access, you would be forced to seek temporary¬† guardianship in the Probate Court. Even though Massachusetts has an after-hours emergency system so that there is always a judge on call, precious time can be wasted while trying to get all the paperwork in place for a temporary guardianship.

And if (God forbid!) your child should die, having a basic will which nominates you as personal representative of his estate and leaves specific direction about to whom he may want to give his possessions.

The cost of a basic estate plan is usually modest, and well worth the peace of mind which it will give you once you drop off your child this fall at his dorm.

Time for the Second Annual Get-Your-Graduate-to-Sign-A-Power-of-Attorney Lecture

Those of you who were reading my blog a year ago…. go have a cup of tea.

The rest of you…. pay attention.

There’s a good chance you know a kid who just turned or is about to turn 18. You may be attending her high school graduation in a few weeks. Guess what… that kid is or is about to become a legal adult. That means Mom and Dad have NO legal right to access her financial information, school records, or talk to her doctor.

So? You may shrug.

Well, what if there’s an emergency? What if Suzy is involved in a car crash and gets seriously injured? Who will have the right to deal with the auto insurer? Medical insurance? Sue the other driver? Tell the college that she’ll need to take a leave of absence? Unless Suzy has signed a durable power of attorney, a health care proxy, and a medical information (or HIPAA) release… no one. If Suzy’s injuries leave her in a coma, the hospital may not listen to the parents unless there’s a health care proxy in place — forcing them to go to court to seek a guardianship.

Or… what if Bobby is still in school and receiving special education services? Under federal law, the parent’s right to advocate for Bobby and approve the education plan dies at age 18 unless Bobby signs a power of attorney authorizing the parent to engage in such matters, Bobby is legally on his own and at a distinct disadvantage in negotiating for his schooling.

Most attorneys will prepare these documents for a modest fee. Just make sure that it gets done.