Retzner: Estate planning for the newly “adult” children

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By Rodney S. Retzner

As my son, Ben, has his 18th birthday this coming week, I am reminded of several issues we rarely think about when dealing with children. “Adult children” can be an oxymoron (like “jumbo shrimp”). Regardless, when a child reaches the age of 18, the law classifies the “child” as an “adult” without any consideration of reality. With adult status comes the privacy of that adult’s information.

What a wonderful and exciting time it is to send our young adults off to college in the fall. The room and board is paid, health insurance is arranged, maybe a new bank account is opened and credit card obtained, and everything seems to be going well – until the first medical bill arrives from the campus health center, or until the parent wants a peek at the grades, or has questions about the tuition bill or why that bank account is always empty and the adult child is calling home asking for more money. Few things are as maddening to a parent as receiving a bill for medical services but not being able to inquire as to the service provided, or getting an “overdue” or “overdrawn” notice on a checking account but not being able to review the transactions in the account. Even more maddening is the fact that every such institution fully expects to be paid by the parent, but then cannot disclose information the parent may need to make an informed decision about making that payment.

Very few people consider the legal needs of their now-“adult” son or daughter. Absent a power of attorney or other delegation of authority, however, you may not be able to act on your child’s behalf with respect to his or her health care or financial affairs if he or she becomes incapacitated, or just needs assistance.

As the adults in our lives return home for Thanksgiving and the holidays, you should consider addressing these issues in advance of problems occurring. The following documents may be used to grant you the authority to act on your child’s behalf and continue to assist him or her with medical and financial decisions:

Health Care Power of Attorney: This document allows you to act on behalf of your adult child with respect to his or her health care decisions in the event he or she cannot make such decisions themselves. The document would also include a “HIPAA release,” which will allow you access to your child’s medical records should the Health Care Power of Attorney become operative.

Durable Financial Power of Attorney: This document allows you to act on your adult child’s behalf with respect to legal and financial matters. Some examples of actions you may take on your child’s behalf include paying bills, applying for loans, entering into transactions involving vehicles and apartments, etc. etc. etc.

“FERPA” Release: This document allows the named representative to speak with the school regarding scholastic performance, including records, grades and attendance. Your child’s school should be able to provide you with its specific form upon request.

It is not necessary that your child be incapacitated for these documents to be effective. They can be effective immediately upon signing. In this way, your child can continue to act on his or her own behalf and, should your child become disabled or otherwise need your help (such as the case may be if your child is traveling or simply overwhelmed with new responsibilities), you can quickly assist (not “rescue,” “assist”). Additionally, the documents and access afforded by them are vital as you continue the very important parenting method of “trust but verify” by allowing you to review transactions, medical treatment and grades and continue the good guidance you have always provided.

It is important to note that all of the aforementioned documents may be revoked by your adult child at any time (so long as the child has the mental capacity to do so). A little “carrot and stick” will go a long way in keeping the documents active. The independence a child receives upon reaching the age of 18 cuts both ways. The child can cut off your rights to participate, but the law also cuts off the requirements of your participation, especially financially. A parent can, gently and politely, remind the child that the “carrot” of financial support comes with the “stick” of having access to information. Obviously, this should not be taken too far and you, as the parent, should limit yourself (for example, you probably do NOT want access to Twitter accounts, Instagram, Snapchat, etc.)

Finally, two additional points of importance as a child reaches age 18:

1. The law still requires that males register with the Selective Service within 30 days of their 18th birthday (sometime during the 30 days before their 18th birthday, their 18th birthday and the following 29 days after their 18th birthday).

2. A child who will be at least 18 years old on or before the next election may register to vote in that election if the voter will turn 18 on or before the election.

It is best to discuss these issues with your adult child shortly after he becomes an “adult” and definitely before he leaves the comfort of your home. While this topic is not nearly as exciting as the benefits of his or her newfound freedom, it is necessary to support and protect your child during these early adult years.•


Rodney S. Retzner is a partner at Krieg DeVault LLP. Opinions expressed are those of the author.

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