Sending a child off to school this fall? Here’s a few legal issues to keep in mind.
Do you have a child who has recently turned age 18? If so, he or she is likely off to college, taking a gap year or working and living outside of your home. Since you are likely paying your child’s tuition and insurance and claiming your child as a dependent on your tax return, it may surprise you that you no longer have access to your child’s health, financial or educational records.
In North Carolina as in many other states, once a child turns age 18, the child is considered an adult by law. In addition, under the Health Insurance Portability and Accountability Act (“HIPAA”), the privacy of his or her personal health information is protected. For you to be able to assist your young adult child with medical and financial decisions, whether he or she is incapacitated or simply needs your help, your child must give you express authority in certain legal documents:
- A health care power of attorney gives someone the authority to make health care decisions for you and to receive information about your medical condition if you are incapacitated. Some states may allow parents to consent to their adult child’s medical treatment, and in an emergency situation, a doctor may choose to convey critical information to an adult child’s parents if that is in the child’s best interests. To be assured that you will be able to make health care decisions for your adult child in an emergency, however, your child should have a health care power of attorney. North Carolina has a statutory form health care power of attorney, and the Secretary of State’s website has a link to a Word version of the form (health_care_power_of_attorney.pdf (sosnc.gov)). North Carolina has an online registry through the Secretary of State where you can upload your health care power of attorney. A child’s registry login credentials can then be shared with parents and medical providers.
- If it is desirable for you to be granted access to your adult child’s medical records and be given permission to consult with his or her medical providers, your child should also sign a HIPAA medical information release form. The authority granted under a health care power of attorney to receive an adult child’s medical information only applies if the child is incapacitated. Note that your child can stipulate which parts of his or her health records remain private. Be advised that disclosure of a college student’s campus health clinic records may require an additional permission form.
- A financial power of attorney appoints someone to make financial and legal decisions for you. If your adult child is comfortable appointing you as his or her agent under a financial power of attorney, you can assist your child with everyday matters such as paying bills, filing a tax return, signing a lease or managing an investment account, or you can take over all of your child’s financial matters should he or she become incapacitated. Your child should be aware that a financial power of attorney can be used to allow parents to access education records (read: grades)! North Carolina has a statutory form financial power of attorney.
While form health and financial powers of attorney and HIPAA authorizations can be found online, it is advisable for your adult child to engage an estate planning attorney to prepare and explain the various options and provisions in these documents, such as organ donation and end of life options in the health care power of attorney. These documents are easy and relatively inexpensive to prepare. Most states recognize powers of attorney validly signed in other states. If your adult child calls North Carolina home but is temporarily residing in another state, your child should only need North Carolina powers of attorney, but your child’s attorney can confirm whether he or she should also have powers of attorney in the state of his or her temporary residence. Similarly, if your adult child is studying or working abroad, you can consult with an attorney on whether any additional documents are needed to grant you permission to access your child’s financial and health records while in another country.
The next time your adult child comes home for a visit, discuss the importance of having these documents in place so that you can provide assistance when your child wants or needs it, and line up a consultation with an estate planning attorney who can discuss and prepare them. You can assure your child that he or she retains control of the ongoing validity of these documents and can revoke or change them at any time. And once you have all the right documents in place, make sure copies are readily accessible to both you and your child.