Helping you plan for all of life's milestones.
When your child turns 18, he or she becomes an adult in the eyes of the law and your legal right to access their protected records, and manage decision-making for them - medical, financial, and academic - comes to an abrupt halt. This is true regardless of whether your child is still living with you, in high school or if they have gone on to post-secondary education.
If you wish to continue providing support to your soon-to-be adult, you must take action, especially if you are sending a child off to college or if you have a child with special needs. To assist a child in navigating the future, parents must get express, written consent from their child once that child turns 18.
For parents of children with special needs, this is also a time when your school will likely be advising you to apply for a guardianship as your child turns 18. However, depending upon your child's situation and legal capacity, it may be possible to avoid the need for a probate court supervised guardianship by having your child execute the legal documents discussed below. Just because a person has a disability or cognitive impairment does not mean they lack legal capacity to execute documents like Wills, Powers of Attorney or other legal consents. A lawyer must evaluate the situation and undertake an assessment of whether their client possesses sufficient legal capacity to execute the following documents:
1. Durable Power of Attorney;
2. A FERPA Waiver (optional);
3. A Designation of Health Care Agent (sometimes called a Medical Power of Attorney);
4. A HIPAA waiver; and
5. Living Will.
Durable Power of Attorney
A Durable Power of Attorney is a legal document that appoints someone (an "Agent") who is authorized to act on behalf of the person granting the power of attorney (the "Principal"). This would enable parents to handle their child's financial affairs such as paying their student loan bills, making car payments, access their bank accounts, etc.
Difference between a Power of Attorney and Conservatorship/Guardianship
Note that with a Durable Power of Attorney, the Principal retains the right to act on their own behalf. This means they can still take out loans, credit cards, pay their own bills, enter into contracts and handle all other affairs that are also delegated to the Agent. In a Conservatorship or Guardianship, the protected person legally loses the ability to handle their own affairs, and is deprived of many basic constitutional rights. Conservatorships and guardianships also fall under the supervision of the Probate Courts, which can be costly and invasive.
FERPA Waiver (Optional)
The Family Educational Rights and Privacy Act, or FERPA, is designed to protect the privacy of educational records, including report cards, disciplinary actions, and test results. FERPA permits parents to access those records, request corrections as needed, and determine who else gets to see those records when their child is a minor.
When the student turns 18, however, or enters postsecondary school at any age, their academic record becomes solely their own, regardless of who pays the tuition. Colleges and universities have their own FERPA release forms available to students.
A Power of Attorney can include special authorizations to allow schools to release education records to parents and make education-related decisions.
Health Care Decisions
In Connecticut, a Designation of Health Care Representative appoints an individual to make health care decisions on their behalf should the child become unable to communicate their own medical wishes for their care.
If an adult child has not executed a Designation of Health Care Representative, parents could face the costly and time-consuming legal process of securing conservatorship or guardianship rights in court. Conservatorships and guardianships are supervised by the court and have annual reporting requirements on the physical, mental and financial status of the ward.
After your child reaches the age of majority at 18, the privacy of their personal health information is also protected under the Health Insurance Portability and Accountability Act, known as HIPAA. Health care providers are not legally permitted to disclose a patient's medical record or even discuss their health status or treatment recommendations with anyone.
To grant their parents or another trusted adult access to their records and permission to speak with their health care providers, your adult child must sign a HIPAA medical information release form and name the individuals to whom they grant access.
A Living Will, sometimes called an Advance Directive, specifies personal choices about life-extending medical treatment in the event that a person is facing a terminal illness or end-of-life care. It's never easy to contemplate, but it is an essential part of every adult's estate plan. In Connecticut, a Living Will can authorize the administration of pain medication and the withholding of certain life-support treatments. These documents do not apply to acute-care medical needs, only to end-of-life care.
Please call us today to discuss how these legal documents can help you to continue helping your adult child, or how they can avoid guardianship for intellectually disabled young adults.
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