Congratulations, Your baby is turning 18…and you can’t make his healthcare decisions any more!

By Alessandra M. Messineo Long, The Law Offices of Alessandra M. Messineo Long, LLC

Turning 18 is a major life event and definitely cause for celebration – by you and your newly-minted adult. Adult? As a mom whose eldest child recently reached this milestone I know the feeling: he’s still my baby! But while your child may seem like a minor to you (and on occasion even acts like it), in the eyes of the law he is an adult for most purposes.

True, he isn’t old enough quite yet to order a beer, but he is eligible to vote. And make his own financial and healthcare decisions. Which means that as a parent you no longer have legal authority to make these decisions on your child’s behalf, even if he is a full-time student, living under your roof, and still covered by your health insurance.
Really??? Really.

What this newfound status means is that like you, your child now needs to have certain basic estate planning documents in place, just in case she is not able to make these decisions for herself. Although most young adults do not need to have a will or create a trust, there are four basic documents everyone aged 18 and over should have
in place: a living will, a health care agent designation or health care proxy, authorization for release and disclosure of health information, and a durable power of attorney.

I know, you are probably rolling your eyes right now and thinking, “Why would a healthy 18-year-old need a living will?” The sad (and scary) truth is that incapacitating illnesses and tragic accidents can happen to anyone at any age. The chance of either occurring is slim, but if it does – AND TRUST ME ON THIS – the very last thing you want is to have to endure a legal process authorizing you to make medical decisions while your precious child is lying unconscious in the ICU. Obviously, then, it is better to be prepared.

The documents for a young adult are very similar to the ones that you have for yourself. You probably have a single document comprising both your living will and health care designation (the combined document is frequently referred to as a health care directive), specifying the type of medical care and treatment you want, whether or not you are an organ donor, and appointing a health care agent to make decisions on your behalf in the event that you are unable to speak for yourself.

Likewise, the authorization for release and disclosure of health information, also called a HIPAA authorization, allows you, if you are appointed as your child’s personal representative, access to your child’s medical records (the ones you had a right to see for the first 17 years and 364 days of your child’s life, but those days are over now . . .).

Finally, although your child may not yet own real estate or have a stock portfolio, she may have a bank account and need to file a tax return from a summer job or paid internship. Unless your child executed a durable power of attorney appointing you as her attorney-in-fact, you won’t be able to handle any financial or other personal affairs
on her behalf without first obtaining the court’s approval.

In addition to the legal reasons to have a set of documents, the process of creating them provides an invaluable opportunity for you and your child to discuss his or her wishes, and to learn more about his or her values. It’s not an easy conversation for anyone to have, but it is so important to do it when they are healthy and well, and not in a time of crisis.

If this past year or so has taught us anything, it is that the completely unexpected really can happen. I must confess that during this pandemic I have worried about the health and wellbeing of my children every single day. So although I am an attorney, first and foremost I am a mom. And as a mom, I think the best gift you can give your child for his or her eighteenth birthday isn’t a car or special piece of jewelry, but a meeting with your lawyer to have these basic documents created. Not only will it give the whole family peace of mind, it is also the perfect way to start your child on the road to responsible estate planning – it’s the gift that keeps on giving!

And (I’ll put on my lawyer hat for this part) if you haven’t reviewed your own estate plan in the past few years, it is a great time for your attorney to do a comprehensive family review and discuss any recommendations and changes. Now that your baby isn’t a baby anymore . . . except, of course, to you.

With sincere gratitude,
Alessandra, Mom and Attorney
[email protected]
The Law Offices of Alessandra M. Messineo Long, LLC