Can I Make Decisions for My 18-Year-Old ‘Kid’ If She Becomes Incapacitated?

Home » Blog » Can I Make Decisions for My 18-Year-Old ‘Kid’ If She Becomes Incapacitated?
Posted on: June 17, 2022 | by: Graber & Johnson Law Group, LLC
Incapacity can occur because of illness or an accident. It can be temporary or permanent. That’s why every adult needs a power of attorney in place, once they turn eighteen.

The Press-Enterprise’s recent article entitled “Legal documents for young adults” describes some of the important legal and estate planning documents your “kid” (who’s now an adult) should have.

HIPAA Waiver. This form allows medical personnel to provide information to the parties you’ve named in the document. Without it, even mom would be prohibited from accessing her 19-year-old’s health information—even in an emergency. However, know that this form doesn’t authorize anyone to make decisions. For that, see Health Care Directives below.

Health Care Directive. Also known as a health care power of attorney, this authorizes someone else to make health care decisions for you and details the decisions you’d like made.

Durable Power of Attorney. Once your child turns 18, you’re no longer able to act on their behalf, make decisions for them, or enter into any kind of an agreement binding them. This can be a big concern, if your adult child becomes incapacitated. A springing durable power of attorney is a document that becomes effective only upon the incapacity of the principal (the person signing the document). It’s called a “springing” power because it springs into effect upon incapacity, rather than being effective immediately.

A durable power of attorney, whether springing or immediate, states who can make decisions for you upon your incapacity and what powers the agent has. The designated agent will typically be able to access bank accounts, pay bills, file insurance claims, engage attorneys or other professionals, and in general, act on behalf of the incapacitated person.

FERPA Release. If your child is going on to higher education, the Federal Educational Rights and Privacy Act controls a parent's access to their child's education records for many schools. There are some exceptions, but generally schools must have the student's consent prior to the disclosure of their records to a parent. The appropriate release form from the school should be signed if your child needs to give you access to their educational records.

They’ll always be your babies, but once your child turns 18, he or she is legally an adult.

Be certain that you’ve got the legal documents in place to be there for them in case of an emergency.

Remember a spring break, when they’re home for summer after their 18th birthday, or a senior road trip are all opportunities when these documents may be needed.

Reference: The Press-Enterprise (April 2, 2022) “Legal documents for young adults”

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