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Does Your College Student Need Estate Planning?

Does Your College Student Need Estate Planning?
March 17, 2021

It’s hard to believe that your 18-year-old children are technically adults. Even though your child may be leaving home for the first time and going to college, I know they still feel like your baby. For their entire life, you have likely made all their financial and health/medical decisions. But once they turn 18 years old, many areas that were solely under your control are now in their hands. Upon turning 18, you are no longer their legal guardian and thus no longer have any legal rights to make these decisions for them. Once parents come to this realization, many will begin to wonder whether it is time to start talking to their new college student about estate planning.

Kid out of the house? Time to get them into an estate plan!

Before leaving the nest, its important to have your child sign certain estate-planning documents. Chances are that they do not have much by way of assets, so I’m not talking about a Will or a Trust (although if you, mom or dad, don’t have these documents, we definitely need to talk).

 Instead, I am talking about having your 18-year-old sign, what I call, the essential incapacity-planning package, which is composed of legal estate planning documents that every college student needs:

Health Care Surrogate Designation with HIPAA Release

In Florida, where I practice, this document is called a Health Care Surrogate Designation. In other states, the same document may be referred to as a “health care proxy.” The health care surrogate designation – with HIPAA language embedded – is what will allow you to access your child’s immunization records, medical records, and assist him or her with their medical decision-making should they be unable to do so. Hospitals have been known to refuse to speak with parents of adult children without this documentation.

 HIPAA (Health Insurance Portability and Accountability Act) is what protects medical records from being accessed by anyone else (even parents) without specific permission. HIPAA will put up a barrier between you and your child’s medical records – even if they are still on your health insurance plan.

 In Florida, depending on how the document is drafted, your child may choose to only make the health care surrogate designation effective if, and only if, they lose their capacity to make decisions. They will also have the choice to make it effective immediately.

Durable Power of Attorney

A durable power of attorney, allows you, the parent, to become the legal agent (also called “attorney-in-fact”) for your child. Depending on how they are drafted, they allow the agent to do different things. Some common powers granted under a durable POA, are: banking, paying bills, dealing with credit cards, signing agreements/entering contracts, and applying for government benefits.

 Unlike the healthcare surrogate designation, in Florida, the POA must be effective immediately (not only if deemed incapacitated).

 Without these documents properly signed in advance, you may have to go to court to get any of these decisions made.

 By having your adult children sign these essential college student estate planning documents, you can ensure that, should they become incapacitated, you will be able to easily access their medical records, talk to doctors/hospital staff, handle their banking (if you are not already a co-owner on the account), pay their bills and sign their name/enter contracts on their behalf, if your child becomes temporarily or permanently unable to do so.

 This is unpleasant stuff to think about, I know.

 But, as careful and conservative as your child may be, they are entering a world where they will not be able to avoid other people behaving carelessly with their new-found freedom. Parties serving alcohol, drinking and driving, and experimenting with drugs are pervasive on college campuses whether we like it or not.

 G-d forbid your child is involved in an accident (even if no fault of their own), you as a parent need to be empowered to act quickly.

 Hopefully, once these incapacity-planning documents are signed, they will never be needed. But you will have one less thing to worry about if there is an unfortunate event, which necessitates their use. A parent dealing with an incapacitated child does not need the added stress and burden (and cost) of having to appear before a judge in open court in order to get permission to make these decisions.


Estate Planning for Your College Student and Other Adult Children

If your children have now reached adulthood, NOW is the time to start planning for the unthinkable - not after something terrible has happened. Reach out right away to schedule a consultation and begin the process of estate planning with your college student.

Jason Neufeld is the Founder and Managing Partner of Elder Needs Law, a Florida estate planning and elder law firm he created in 2017. With more than 15 years of experience practicing law, he represents clients in a wide range of legal matters, including Medicaid planning, estate planning, elder law, probate, Medicare, and life insurance.

Jason received his Juris Doctor from the University of Miami — School of Law and is a member of the Florida Bar and the Broward County Bar Association. He has received numerous accolades for his work, including being named a Rising Star and Super Lawyer by Super Lawyers and among the Florida Legal Elite by Florida Trend in 2024.

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