As children head off to college this fall, parents will want to ensure that their child executes a Health Care Proxy and Power of Attorney beforehand. These documents are more important than ever as we continue to battle COVID-19 and the threat of campus outbreaks.
Why are these documents necessary now?
Once a child reaches the age of 18, parents may no longer have the authority to make certain decisions about their teen’s health, education, or finances. It doesn’t matter if your daughter or son is covered under your health insurance or that you’re paying for their tuition. While teens may not have the legal authority to rent a car or drink alcohol, their legal status when they reach 18 is significantly different from that at 17. Parents may be denied information about their child’s medical records, bank account, and other affairs because of privacy laws. This can be problematic when a decision needs to be made immediately or in cases of emergencies.
While doctors may exercise discretion, imagine not being able to make decisions about your child’s health or financial affairs if they are ill, injured, or incapacitated without court approval. That’s a reality that no parent should ever have to be faced with, but it can be avoided if a Health Care Proxy and Power of Attorney are executed in advance.
What is a Health Care Proxy?
A Health Care Proxy will allow your child to appoint you as their health care agent. This will enable you to make medical decisions on your child’s behalf if a physician determines that your child cannot make their own decisions. Students can also appoint another relative or trusted adult to carry out their wishes as their health care agent. Under New York law, an agent can choose treatment options, including blood transfusions, artificial nutrition, transplantation, surgical procedures, and antipsychotic medication. New York law also allows the agent to consent to an organ or tissue donation on the patient’s behalf.
Is a Health Care Proxy the same as a Living Will?
In some states like New York, a Health Care Proxy and a Living Will are separate documents, while in other states, the Living Will is incorporated into the Health Care Proxy. Regardless of whether they are executed as separate documents, they serve a different purpose. A Living Will provides specific instructions about health care decisions, while a Health Care Proxy does not require that such decisions be made in advance and only requires the appointment of a health care agent. However, in New York, a Health Care Proxy can be created to include specific end-of-life wishes and instructions for health care providers that are usually included in a Living Will— if your child, the principal, prefers to do so.
Don’t I already have the right to make medical decisions as my child’s next of kin?
Many families assume that they automatically have the authority to decide about their loved one’s health because they are next of kin. Still, these decisions are limited based on state law. It’s not unusual for family members to disagree about what course of action to take when a loved one is ill or incapacitated. Furthermore, not having a Health Care Proxy can create unnecessary conflict and confusion, especially if you are going through a divorce. Which parent will get to make decisions on behalf of the child if they are incapacitated? It’s critical to iron out these details ahead of time.
What is a Power of Attorney?
A Power of Attorney is a powerful legal document that will allow you or your spouse to act on your children’s behalf if they become incapacitated or cannot manage their legal or financial affairs. There are different types of Powers of Attorney. If you wish to have the immediate power to act on behalf of your child, the Power of Attorney should be created as a Durable Power of Attorney. A Durable Power of Attorney does not require proof of disability or incapacity of the principal. It will provide you with immediate authority to act on your child’s behalf if a need arises. It will not lapse after a period of incapacity or disability and will not be affected by a lapse of time.
You and your child should jointly decide the powers that your child will grant to you as their Power of Attorney agent. Although the list of powers is extremely broad, it is generally helpful if a parent is granted the power to sign contracts, make banking transactions, manage student debt, pay bills, and have the authority to access digital accounts and a bank safe deposit box.
A Power of Attorney can be especially useful if your child is studying abroad and needs you to manage their affairs. It’s important to remember that the Power of Attorney varies from state to state and is governed by state law. It is a powerful document that should be created under the guidance of a reputable estate planning attorney. Earlier this summer, New York amended the laws governing the Power of Attorney. You can learn more about these changes here.
Can a Power of Attorney include a Health Care Proxy?
In New York State, a Health Care Proxy and a Power of Attorney are two separate documents that must be completed and signed independently of one another. It is not possible to combine both powers in one form under New York law. However, in some states, a Power of Attorney can be created to include the delegation of a health care agent and the delegation of a power of attorney agent.
What if I live in one state and my child attends college in another?
It should not be necessary for your child to execute two sets of Power of Attorney and health care documents because they will be residing in another state to attend college. It is unlikely that another state will refuse to honor a Power of Attorney or a Health Care Proxy executed in another state unless the forms were not executed properly or the terms run afoul of state law. An estate planning attorney can advise you if the terms of your child’s documents will be problematic to enforce in another state.
No parent wants to think about the possibility of their child getting sick from COVID-19 or another illness, much less injured, or in a life-or-death situation while away at college. But avoiding this can lead to unintended consequences. If this global pandemic has taught us anything, no one knows what the future can bring.
This blog post is written for educational and general information purposes only and does not constitute specific legal advice for the reader. And it should not be used as a substitute for seeking competent legal advice from a licensed professional attorney in your state.
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