Guest column: You may need these estate planning documents if your college-age child gets sick

16 October 2020 Tampa Bay Business Journal Publication
Authors: Jamil G. Daoud

As the nation continues to grapple with how to control Covid-19, parents ought to consider putting some key estate planning documents in place for their college-age children. This is particularly important since a parent’s ability to make certain decisions on behalf of a child ceases when the child turns 18, and new data shows that young adults are getting hit harder than we originally thought by the virus. 

Although college-age children are technically adults, they are oftentimes still dependent on their parents. If parents wish to ensure that they continue to have the ability to look out for such children without court involvement, then they should consider having their children implement the following estate planning documents: designation of health care surrogate (also referred to as a health care proxy, health care power of attorney, or medical power of attorney; and durable power of attorney.

Designation of health care surrogate

A designation of health care surrogate allows a college-age child to authorize someone (often referred to as a “surrogate”) to make medical decisions on the child’s behalf in case such child cannot make those decisions for himself or herself. Also, the document usually contains a Health Insurance Portability and Accountability Act authorization — also referred to as a HIPAA release — which permits medical providers to disclose the child’s health information to the surrogate.

If a college-age child does not have a designation of health care surrogate, then the parents will need to rely upon state law in order to have the appropriate authority/power. For example, Florida law will oftentimes end up giving a parent of the child the ability to make health care decisions for the child, but it can be problematic if the child is attending an out-of-state school when he or she gets sick, or if the preferred decision maker is someone other than a biological or adoptive parent (e.g., a step-parent, sibling, friend, etc.).

Additionally, college-age children will need to understand that, by signing a designation of health care surrogate that contains a broad HIPAA authorization, their surrogate will be able to obtain information that they may prefer to keep private (including, but not limited to, information regarding drug/substance abuse, mental health, birth control and family planning, sexually transmitted disease tests, etc.).  For this reason, the child may want to consider putting some limits on the HIPAA authorization so that only certain types of information are disclosed to the surrogate.

Durable power of attorney 

A durable power of attorney allows a college-age child to authorize someone (often referred to as an “attorney-in-fact”) to make financial decisions on the child’s behalf. The durable power of attorney often enables the designated attorney-in-fact to, among other things, sign income tax returns, access bank or brokerage accounts, pay bills (e.g., rent, utilities, credit cards, etc.), make changes to the child’s financial aid package, and assist with scholarship and/or tuition issues.  

In Florida, the durable power of attorney must provide that the power vests in the attorney-in-fact immediately upon the child’s execution of the document, as opposed to allowing the child to state that the power does not vest until the child becomes incapacitated. It is important for the child to understand this since most young adults do not want someone else (even a parent) making financial decisions on their behalf if they are not incapacitated. 

Nevertheless, without a durable power of attorney in place, a parent would likely need to pursue a court-supervised guardianship to gain control of the child’s finances. 

In conclusion, parents can continue to hope that they will never need to use their child’s designation of health care surrogate or durable power of attorney, but it is prudent to have them in place just in case.

This article was originally published int the Tampa Bay Business Journal

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