By Kim Fiske
In the excitement and apprehension of saying goodbye to high school friends, packing to leave home and selecting new classes, it’s easy to overlook that your child legally became an adult when he turned 18. This passage comes with new rights and responsibilities that affect both parent and child.
As your children gain new legal rights, keep in mind that you are losing many of the legal rights you had over them when they were younger. Parents are surprised to learn they no longer have the right to receive their child’s college grades or talk with his doctor without his permission – even though they are paying the bills.
This transition is an opportunity for you to assist your child in becoming a responsible adult by making some legal plans together.
A great starting point for this discussion is a publication provided by the Virginia State Bar for young adults called “So You’re 18” (soyoure18.com). This publication provides information on topics including obtaining credit, signing contracts, driving drunk, voting and making a will.
In addition, there are several legal documents your child should consider signing before leaving home for college, including a Family Educational Rights and Privacy Act waiver, a durable power of attorney, a last will and testament and health care documents.
The Family Educational Rights and Privacy Act is a federal law that protects student education records. You may be paying the tuition bill, but you cannot receive your child’s grades without written permission. Most colleges provide a FERPA waiver or authorization letter for students to sign if they want to give their parents access to their grades and other student records.
A durable general power of attorney is a legal document in which your child names another adult – you – to serve as his agent to do things on their behalf. By signing this document your child gives permission for you to do many things you used to do for him when he was a child. Additional things you may do on their behalf include having access to bank and investment accounts, signing checks, signing a lease agreement and even filing tax returns. Some banks and mutual funds require an additional form along with the GDPOA, so be sure to check the requirements of your child’s financial institution.
The GDPOA is an important document to have, but it gives a lot of power to the agent. Your now-adult child just obtained some privacy from you and he may not want to give up that privacy on all matters. For instance, he may not want you to have access to his digital devices or the content of his digital accounts but would approve access to his digital records. You and your child may want to meet with an attorney to discuss the options and determine which rights your child feels comfortable giving to you in a GDPOA.
A last will and testament directs what happens to a person’s assets upon their death. Although your child may have few personal assets now, they will likely inherit assets from you upon your death. Although it is unlikely, your child could be involved in an accident before your death which leaves him incapacitated and unable to sign a will. Now is the time to discuss together where your child’s inherited assets would go in such a situation, and to sign a will to make sure that plan is in place.
The Health Insurance Portability and Accountability Act became applicable to him when your child turned 18, meaning his health providers must keep his medical records confidential, and they can no longer talk with you about his care without his permission. Your child may sign a HIPAA release form which authorizes health care providers to release his medical records to you, and to talk with you about his medical treatment. The health clinic at your child’s school may require your child to sign an additional authorization form in order for the school to give you information about his medical treatment there.
A HIPAA release allows access to your child’s medical records and information about his medical treatment but does not give you authority to make decisions about his medical care.
The Virginia Advance Directive for Health Care allows your child to name you as his medical agent to make medical decisions on his behalf if he becomes incapacitated or is unable to make decisions himself.
Advance directives vary by state law, and the Virginia document allows an individual to state the healthcare treatment he would like if he is unable to express his wishes. If your child will be attending school in another state, it is permissible for him to sign an advance directive in that state too. Virginia has a website (www.connectvirginia.org) with links to free forms provided by the Virginia State Bar, and a free registry for Virginia residents to electronically store their VADHC so that medical providers, emergency responders and family members with the proper authorization can quickly access their VADHC when needed.
The writer, an Alexandria attorney, has been helping families with estate planning, estate and trust administration, charitable giving and business succession planning for more than 20 years.