Everyone hates homework, especially in the summertime, but when it comes to estate planning for your children, you may have some work to do before the school year starts. Believe it or not, when a child turns 18, he or she is now considered an “adult” in the eyes of the law in Massachusetts and many other states. Although you may still view them as a child (and they may still act like one at times), there are some essential documents to put into place, that will help in the event that something unexpected happens.
Health Care Proxy and Durable Power of Attorney:
Every child age 18 and over should have a health care proxy and durable power of attorney naming a parent (or parents) as agent.
A health care proxy names someone to make medical decisions if your child is incapacitated. The health care proxy should include a reference to the Health Insurance Portability and Accountability Act (HIPAA) which allows the agent access to medical records. If your child is attending school in a different state, you should consult with your attorney to determine whether you need a separate health care proxy for each state. A properly executed health care proxy and HIPAA release provide several benefits:
- Allows your child’s doctors to discuss privileged medical information with you and gives you the power to make decisions regarding treatment.
- Enables you to stay informed of your child’s condition should he/she fall ill or has an accident. If you are not named as a health care agent, a medical provider cannot legally discuss your child’s condition, let you make any health care decisions, or even confirm that your child is receiving care.
- Gives you the authority to contact insurance companies on his or her behalf
Similarly, it is important to have a durable power of attorney for financial matters. Even if you are the one paying the college tuition, you are not legally allowed to manage your child’s money or communicate with his or her financial institutions without a power of attorney. If your child becomes incapacitated or is simply unavailable while studying in another state or participating in a study abroad program, a power of attorney permits you to access bank accounts, file tax returns, deal with student loans or other creditors, speak to the financial aid office, and handle any other financial issues that may arise. Your estate planning attorney can assist in creating one single durable power of attorney document that can be used for contacting all financial institutions.
If an adult child is incapacitated and does not have a health care proxy or power of attorney in place, then your only recourse will be to go to court to obtain Guardianship and/or Conservatorship. This involves a public process that can be expensive and time-consuming. In contrast, these basic documents are straightforward and can be prepared by your estate planning attorney relatively quickly and at a much lower cost than a court proceeding.
In addition to a health care proxy and durable power of attorney, some adult children may also need a will. If your child owns significant assets in his or her name, then he or she should sign a will to name a personal representative to settle the estate and decide who should receive those assets. If your child does not have a will, the assets pass according to your state’s intestacy statute. Typically, that means the assets will go to the child’s parents, which may negate your own estate planning.
Considerations for Minor Children:
Parents of minor children do not yet have these worries. However, these parents should review their own wills or update existing wills to include naming a guardian or guardians for their minor children.
A guardian is an individual given the same legal powers and responsibilities of a parent for minor children. You will want to carefully consider your options before designating this individual. He/she would have the responsibility of caring both emotionally and financially in the best interest of your children. As a parent, you hope that you will never need to use these documents, but they are vital in an emergency. Please contact your Boston Financial Management advisor or a member of BFM’s Estate and Financial Planning Group if you would like more information about estate planning for your adult child.
Important: This alert does not contain any legal or tax advice. You should always consult with your attorney, accountant or other professional advisors before changing or implementing any tax, investment or estate planning strategy.
IRS Circular 230 Disclosure: Pursuant to IRS Regulations, we inform you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax related penalties or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Professional Designation Minimum Requirements Disclosures:
AEP® – Accredited Estate Planner®. Minimum requirements for the AEP® designation include active practice for a minimum of five years within the following disciplines: accounting; insurance and financial planning; law; philanthropy; and trust services with at least one-third of the individual’s time devoted to estate planning. Additionally, one or more of the following professional credentials: JD, CPA, CLU®, CFP®, CPWA®, CFA, CAP®, CSPG, CTFA, MSFS, and MST is required, along with three professional references and current membership in an affiliated local estate planning council.
CDFA® – Certified Divorce Financial Analyst®. Minimum requirements for the CDFA® designation include a bachelor’s degree with three years of approved on-the-job experience along with successful completion of the CDFA® examination consisting of 150 multiple choice questions. 30 hours of continuing education is required every two years.
CTFA – Certified Trust and Fiduciary Advisor. Minimum requirements for the CTFA designation include 5 years minimum experience in wealth management, a bachelor’s degree, and passing the CTFA examination. 45 continuing education credits are required every three years.