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Legal Planning for Young Adults

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As your child blows out the candles on their 18th birthday cake, are you prepared for the legal changes? Transitioning into adulthood is what your child looks forward to their whole life and it’s crucial to ensure they have the proper legal protections in place. In this article, we are going to highlight the key documents every 18-year-old should sign to maintain your ability to assist them in medical and financial emergencies.

What legal rights and responsibilities will my child gain when they turn 18?

Turning 18 in Massachusetts grants young adults a wide range of new legal rights and responsibilities, transitioning them to “adults” in the eyes of the law. This is a milestone that appears as freedom but actually brings on a lot of responsibility. Here are a few important things that change once your child becomes a legal adult.

Your child can:

  • Be called for jury duty.
  • Enter legal contracts.
  • Buy property.
  • Apply for loans/ credit cards.
And most importantly… . A survey by the University of Michigan C.S. Mott Children’s Hospital found that nearly half (48%) of parents said they had experience being denied their child’s health information by a provider because of privacy regulations once the child became a legal adult.

Will I still have access to my child's medical records and be able to make healthcare decisions for them after they turn 18?

Once your child turns 18 and becomes a legal adult, you as their parents lose the authority to access their medical records and financial accounts. While this newly gained independence is an exciting milestone for young adults, we must acknowledge the important legalities of their independence and what you can do to extend their protection. Yes, your baby is an adult now, but you are still their parent and that is a lifetime commitment.

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What is incapacity?

Declaring someone as incapacitated is typically based on assessments by medical professionals. There are a variety of ways you could become incapacitated. You could be in a serious car accident resulting in a coma, a mental health crisis, or surgery requiring general anesthesia. Even short-term incapacity in these cases necessitates an appointed agent to provide consent and make vital decisions. Long-term or permanent incapacitation could be caused by severe physical or cognitive impairments from conditions like traumatic brain injury, advanced dementia, intellectual disabilities or chronic mental illness.

Stay in the Loop

This independence becomes problematic if your child ever becomes incapacitated and you need to make decisions on their behalf. So, what does incapacity have to do with your young adult’s new-found independence? Accidents happen. You’ve had parental rights for a long time. Being able to speak to your child’s doctors and make decisions on their behalf has been the way things worked for 18 years, but after your child turns 18 you no longer have automatic access to your child’s medical records.
Q: Why don’t I have access to my child’s medical records after they turn 18?

A: HIPAA—For parents with soon to be high school grads or parents with kids going off to college, this means you no longer have an automatic legal right to access your child’s education/health records held by the high school or secondary school without the student’s consent.

Q: What Is HIPAA?

A: HIPAA (Health Insurance Portability and Accountability Act) is a federal law in the United States that Provides data privacy and security provisions for safeguarding medical information. This act created national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.

Overall, HIPAA is a good thing! The main goal of HIPPA is to reduce the cost of healthcare by combating abuse, fraud, and waste.

HIPAA violations result in substantial financial penalties for hospitals or health care institutions who do not comply. For instance, Children’s Medical Center of Dallas was fined $3.2 million for a series of HIPAA violations.  

Is your “soon to be” or “recently became” young adult heading to college or taking their next step forward?

Do you want to ensure continued involvement in their healthcare and finances if needed? You can stay in the loop by having your child fill out a few forms and designate a few agents through these essential legal documents:
  1. HIPAA Authorization: This allows you, as the parent, to access your child’s medical records and discuss their healthcare with providers.

    Massachusetts has additional state laws that provide further protections for certain types of health information, such as mental health records and HIV test results, beyond the minimum standards set by HIPAA. Healthcare providers must be aware of these additional state-level requirements.

  2. Health Care Proxy: This allows your child’s agent to If you are named as a Health Care Proxy, the types of decisions you could make include life-sustaining treatments like ventilators, dialysis, tube feeding, etc. If you are not named as Health Care Proxy, you may not be able to make decisions.

    In Massachusetts, if a person loses the ability to make their own medical decisions (e.g. due to unconsciousness, dementia, or other mental limitations), it is the appointed health care agent who is legally authorized to make decisions on their behalf, not necessarily a spouse or family member.

  1. Durable Power of Attorney: This gives you the ability to manage your child’s financial affairs if they become incapacitated.

    Unlike a regular power of attorney, a durable power of attorney remains valid and effective even after you become disabled or incompetent

Side Note for Parents -

In Massachusetts, the laws around durable powers of attorney changed in 2009, so any documents executed before that date may no longer be valid.

Massachusetts law, Chapter 201B, was repealed as of July 1, 2009. This means Durable Powers of Attorney documents that reference Massachusetts General Laws, Chapter 201B became invalid on July 1, 2009.

Also, durable powers of attorney can sometimes be rejected by financial institutions if they are perceived as being too old.

How these Documents work together

If you’re wondering, “How can I ensure I can still assist my child with financial matters like banking, taxes, and bills after they turn 18?”, that’s why we include this last document in our Incapacity Planning!
A HIPAA Authorization Form is distinct from a Health Care Proxy, which allows an agent to make healthcare decisions on behalf of an incapacitated individual. The Authorization Form only grants permission to share information, not to make decisions.

So, health care providers may be hesitant or refuse to share medical information with a health care proxy who does not have a HIPAA Authorization due to concerns about violating HIPAA regulations, even if the proxy is trying to make informed decisions about your care. The difference is subtle, but it’s an important legal distinction.

This is why we include both documents in our incapacity plans.

We Believe that family is everything, and kids are the heart of the home. Even if your kids aren’t legally kids anymore, we know the parental instinct doesn’t just disappear. Getting these documents in place is a way to extend that parental presence for your kids.

Updating Documents

There is no strict legal requirement to update incapacity documents at specific intervals. However, it is generally recommended to review and update these documents periodically, especially when certain life events or changes occur. The 6 D’s rule is a good judge of telling when you should update your documents.

  1. Decade
  2. Death
  3. Diagnosis
  4. Divorce
  5. Decline in health
  6. Domicile/residence change

The Importance of Planning Ahead

Legal protection is crucial, even for young, healthy adults. You never know what the future may hold, and having these documents in place will give you and your child peace of mind.

If your child is getting ready to leave the nest to attend college or pursue life goals, we cannot emphasize enough how important it is to have these documents in place. Don’t wait until it’s too late. Connect with us to schedule your child’s 18+ Planning Meeting and ensure their future is protected.

To learn more about incapacity documents, visit our article “Incapacity Documents For Parents”!

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THE PARENTS ESTATE PLANNING LAW FIRM, PC

At The Parents Estate Planning Law Firm, we answer your questions at your convenience; we stay in frequent communication; and we meet to discuss changes in life circumstances and in the law to ensure that your assets are protected.

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