Springtime brings new life, new growth, and new beginnings. As spring transitions into summer, parents also face their children’s eighteenth birthdays, graduations, college, and letting go. As our children are growing up and spreading their wings, the legal protections provided by us as parents are also ending.
From the moment our children are born, we have access to sensitive information, like health care records, and the ability to act for them. However, this changes once our children turn eighteen. At this magic age, our children are considered “adults” under Wisconsin law. As adults, they are independent. And while parental access to certain health care information often dwindles during our children's teenage years, at eighteen it disappears entirely. Parents no longer have the luxury (or responsibility) of giving permission and/or making decisions for their children. However, our now-adult children can still allow us to stay involved and protect them when they are unable to protect themselves.
At 18, one does not want to think about one’s own mortality – heck, even most Gen X, Y and Z’s still believe they are invincible. But the truth is, we are not, and neither are our children. Thus, once a person reaches the age of majority, he or she must choose to allow another person to legally speak or act for them. At eighteen, your child can execute a Power of Attorney form. In general, a power of attorney authorizes a person of your child's choosing (their “agent”) to make decisions for them or to act on their behalf.
In Wisconsin, an individual can execute a variety of different powers of attorney. But for today, we will focus on two types of powers: finances and health care. As our children approach their eighteenth birthdays, or even if they have already reached this magic age, we should be discussing with them who should be making decisions for them if something should happen to them, what type of life saving measures they would want in the event of a catastrophic injury, and how they want their finances managed. These are tough but necessary conversations , especially if we want to ensure our children have a voice when they cannot speak or act on their own behalf.
As a parent, I will be asking my children to execute a durable power of attorney for finances along with a power of attorney for health care. Without these, I won’t have the legal ability to make health care decisions for my children or assist with their money management after they turn eighteen--regardless of whether they are still on my insurance, are claimed as dependents for taxes, or if I am paying their tuition.
A financial power of attorney allows an individual to identify who he or she wishes to handle his or her financial and/or business matters. The individual can give their agent broad, general powers or limited powers. Additionally, a financial power of attorney can become effective immediately or at some later identified date in time. Finally, if characterized as “durable,” the authority of the power of attorney survives a finding of incapacitation of the principal (the child). Having a proper, durable power of attorney for finances can help avoid the need for a court appointed guardian in the future, which can be a long, costly, emotional ordeal.
Unlike the financial power of attorneys, a health care power of attorney does not become effective until two physicians, a physician and a psychologist, or a physician and a nurse practitioner find the individual to be incapacitated. Before a patient turns eighteen, doctors simply defer to the patient’s mom or dad for important decisions; however, once the patient reaches the age of majority, mom and dad no longer have a say. Rather, the individual must make arrangements to ensure that his or her medical wishes are met. Furthermore, he or she must take specific steps to ensure their doctors can legally discuss their medical needs with who they choose.
Accordingly, two additional types of legal documents are also associated with the health care power of attorney. First is the HIPAA Disclosure Form on which the principal identifies the persons with whom their medical information can be shared. Without this form, some facilities may be hesitant to disclose if the person is even a patient. The second form is commonly referred to as a “living will.” A living will is a document through which an individual can express his or her preferences about end-of-life care.
At eighteen, an individual’s parent(s) are the usual go-to to be named as the principal’s agent(s) in both health care and financial matters. However, this is not always the case. If the principal does not select their parents, we would recommend another trusted adult be named as agent. However, the individual is ultimately entitled to name whomever he or she chooses as his or her agent. Additionally, it is important to name an alternate agent if the person’s first choice is unwilling or unable to serve.
I like to live in Pollyanna’s world; however, the truth is we cannot shield our children from everything. That being said, we can be prepared for worst case scenarios and work to maintain the ability to assist our children when needed—even when they are grown adults. There is no “aging out” process in our desire to protect our children. Parents should discuss with their children their future wishes and powers of attorney as their children turn eighteen. While having such legal documents properly drafted may come at a cost, the peace of mind provided will be priceless.