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Are Your Kids Heading Off to College Soon? Have They Executed a Power of Attorney or Advance Health Care Directive?

On Behalf of | Jun 7, 2023 | Firm News

Rolling into May is an exciting time of year for high school seniors with all of the end of year activities including graduation.  Then comes fall and some of them become college students and head off to college.  As parents, on top of all the other considerations you have with your child starting college, you may want to consider having your children execute a power of attorney and an advance health care directive.

So long as your child is 18 or older and has capacity, they can choose to execute a power of attorney – either springing into effect upon incapacity or immediately effective – and an advance health care directive.  These documents will name an agent, also known as attorney-in-fact, to handle financial matters and make medical decisions.  Hopefully the need to make medical decisions does not become necessary because your child retains the ability to make those decisions.  But with the durable power of attorney there can be some convenience, if it is immediately effective, to have the ability to handle financial matters for your child while they are away.   A durable power of attorney that is springing requires that your child be determined to lack capacity, typically by their treating physician stating so in writing, before the agent has any authority under the document.  It is my experience that immediately effective powers of attorney are much easier to implement when needed.

There are statutory forms for the power of attorney and advance health care directive that can be found online, completed, and signed.  The signature on the California statutory power of attorney must be notarized.  The statutory advance health care directive can either be notarized or witnessed by two individuals.  The statutory forms are sufficient, but having an attorney meet with your child and draft the documents has benefits.  If your child has questions about the document and they meet with an attorney, then they know that any conversation they have with the attorney is confidential and the documents can be specifically drafted per their wishes.  It also helps if there are concerns regarding validity if an attorney drafts and handles the signing of the documents.

The main purpose of an adult executing a power of attorney and advance health care directive is to avoid a conservatorship if the person loses capacity.  The hope is that a conservatorship is never a concern, but it saves a lot of money and stress to have the documents in place if they are ever needed.

It is important to note that your child, at 18, is now an adult and has the right to choose who will act as their agent under the documents.   Some of the questions I ask the children when I meet with them is whether they are comfortable with their parents having the right to access digital assets including access to social media such as Instagram and the child’s cell phone.  Sometimes there is hesitation, especially with cell phone access, and we can discuss if they want to have someone else specifically handle those types of assets.

The documents can be changed at any time by either revoking them or executing new documents.  So, if your child changes their mind about who they want to act on their behalf or want to change other terms, they are the ones with the ability to make those changes.

As parents, you can make it a graduation gift to your high school senior AND to yourself by encouraging them to execute a durable power of attorney and advance health care directive.  Please contact me if you have questions or if your child wants to meet with me to discuss.