For a parent, the instinct to protect never ends. When your child turns 18, however, your legal right to access their protected records — medical, financial, and academic — does come to an abrupt halt, regardless of whether they are still in high school or covered by your health insurance plan. Parents who wish to continue providing support in case of emergency must take action, especially if they are sending a child off to college.
“In my experience, most parents are not aware of this,” said Steve Elville, lead attorney of Elville and Associates in Columbia, Maryland, noting that parents of children with special needs are the exception as they are generally well-versed in the need for legal safety nets. “Most clients with healthy children need prompting.”
To assist the newly minted adult in their house as they navigate their future, parents must get express, written consent from their child. The importance of doing so is “absolutely” greater during a global pandemic, said Elville, particularly for parents who are sending their child off to college out of state. Indeed, legal documents sometimes differ by location.
Steve Hartnett, an estate planning attorney in San Diego, California, said parents who wish to protect their adult child as they make their way in the world should consider securing at least the following documents:
- A HIPAA waiver
- Medical power of attorney
- Durable power of attorney
- FERPA (optional)
- Living will
Most of these forms are available for free online.
The legal implications of turning 18 are profound. Your child can now vote; they could potentially be sued (or even jailed); they are on the hook for any loans or lines of credit they take out; and, in the case of young men, they must register for the Selective Service.
If you opened any Uniform Gift to Minors Act (UGMA) or Uniform Transfer to Minors Act (UTMA) accounts on their behalf, or your child received an inheritance as a minor that was held in a custodial account, those accounts now belong to them, too — unless a different age, like 25, was specified.
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—even the parent of a young adult who is still on their parent’s health insurance plan.
Parents can generally request and receive limited information about their child’s treatment and tests through their health insurance company, if their child is still on their insurance plan. Hartnett noted, however, that that information would be available only after their child had received the treatment or test, not before, when a discussion of options might be most appropriate.
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 HIPAA release form can be easily obtained online for free or from your child’s doctor’s office. Some states require that the signature be witnessed or even notarized, said Hartnett. Others do not.
Note, too, that many versions of HIPAA release forms exist. Health care providers often have their own HIPAA form containing specific language that they prefer to distribute to their patients. To be safe, it may be wise to have your child obtain and sign copies of the HIPAA release form from all health care providers who are regularly involved in their care (primary care doctors, specialists, hospitals, and clinics).
To cover their bases, parents can also simply ask their child to sign a HIPAA form that they download off the internet so they can keep it in their files in case of emergency.
“You can just have them sign a standard one, and I’d have it witnessed and notarized so that you will be more likely to comply with any company’s (or state’s) requirements,” he said.
Medical power of attorney
Both Hartnett and Elville also recommend that young adults sign a medical power of attorney document when they turn 18, which appoints an individual to make health care decisions on their behalf should they become incapacitated due to serious injury or illness.
If an adult child does not have a signed medical power of attorney document in place, their parents could face the costly and time-consuming legal process of securing guardianship rights in court that would enable them to make decisions on their child’s behalf in the event that it became medically necessary.
Be aware that each state has its own rules governing medical power of attorney documents, and many have their own legal forms. Some also require the signature of a witness or a notary seal.
If your child is going to college out of state, or simply moving away, it is important to research the documents you need in both your home state and the state where your child will be living either part-time or permanently.
Estate planning documents of any kind can be complicated. And an attorney can be a valuable resource in helping you determine what you need.
Durable power of attorney
Most young adults still need financial and emotional support from Mom and Dad, including coverage under their parent’s health and auto insurance plans.
Parents would be wise to discuss with their child the need for a durable power of attorney, said Hartnett, which would enable the parent to handle their child’s financial affairs (pay their student loan bills, make car payments, access their bank accounts, pay taxes) if they were to become incapacitated—or even choose to study abroad.
Here again, different states have different rules. You may wish to consult an attorney for guidance.
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 (college) at any age, their academic record becomes solely their own, regardless of who pays the tuition. Most colleges will not release education records to parents without the student’s written consent — a FERPA waiver.
(In certain cases, in which a college feels that the health or safety of one of its students is at stake, or a student is caught with possession of drugs or underage drinking of alcohol, FERPA does permit the college to contact the parent or legal guardian without the waiver. But it does not require it.)
The FERPA waiver is optional, said Hartnett. Some parents insist that their child sign the FERPA waiver so that they can continue to be involved in their academic experience. Others decide that their child is now an adult and that their college performance, for better or worse, is up to them. There’s no right answer. The important thing is to discuss the FERPA waiver with your child as they head off to college and decide together what feels right for your family.
Another important note: HIPAA and FERPA privacy rules sometimes butt heads. For example, the health records of students who visit their college health clinic may be protected under FERPA and considered part of the student’s educational record. As a result, it would not necessarily be subject to HIPAA privacy rules.
It’s never easy to contemplate, especially for a parent, but bad things do happen. As such, a living will is an essential part of every adult’s estate plan, said Hartnett.
A living will, sometimes called an advance directive, specifies personal choices about life-extending medical treatment in the event that you cannot communicate your wishes yourself.
A living will is very different from a last will and testament, which clarifies how you want your property and assets distributed after you pass away. By contrast, a living will, as the name implies, clarifies what you want to happen while you are still alive.
“Sometimes this is combined with the medical power of attorney, dependent on the jurisdiction,” said Hartnett. “It expresses their wishes regarding end-of-life decisions.
Here again, an attorney can be instrumental in helping you determine which estate planning documents you — and your adult child — may need.
To you, of course, your child will always be your baby. But when they turn 18, they are now an adult in the eyes of the law.
Obtaining the signatures you need to provide support in case of emergency can be a great source of relief as your child heads out on their own. It can also be an excellent opportunity to engage in worthy dialogue about goals, concerns, and expectations.
Provided by Shelly Gigante, courtesy of Massachusetts Mutual Life Insurance Company (MassMutual).
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