I was sitting at the Shabbos lunch table with friends and we all have kids who are in or are going off to Israel or college for the year. I realized that none of them—all intelligent professionals—thought about some things that seem so obvious to me. Their child, whom they still think of as a child, that same one that they still arrange for his/her every move and whom they pay tuition for, in the eyes of the law, is actually an adult. That means that a parent no longer legally has any right to unilaterally make any healthcare decisions or even any financial ones (remember those minors’ accounts may become fully owned by your child at age 18). This also means that if your child has a medical problem (or a substance abuse problem) that a parent will have no access to medical records unless the child gives consent. So what can you do?
Your child can execute a healthcare proxy, assigning someone else who can serve as a proxy on his or her behalf, which often logically is a parent. Similarly, in regard to financial issues, he or she can execute a power of attorney, which appoints an agent to make financial decisions on his or her behalf. And you may want to add in a separate document, HIPPA authorizations, which give the healthcare proxy, or whoever is chosen, the ability to review confidential medical records without having to assert oneself as a proxy. Obviously this discussion is even more in depth or may require additional or other planning particularly if a child has special needs. Even for a child of special needs, even one who clearly cannot care for himself or herself, a guardian (even if a parent) is not automatically appointed or presumed; it still requires a judicial proceeding.
Eighteen-year-olds are not unique in needing these documents. We all need them and they can save you much time and money in avoiding costly legal fees if they become necessary. Absent a power of attorney, should a person become incapacitated, spouses and adult children are not automatically considered to have such authority, and one may need court intervention to have a guardian appointed to act on someone’s behalf. This can be an expensive proceeding and an arduous one since the courts do not lightly remove a person’s rights to care for one’s own person or property. It can take significant evidence to prove that it is necessary. Often someone would fully trust a spouse or a family member to act on one’s behalf and had they appointed that person, the issue of dealing with financial or health issues could have been done with relative ease. So simply planning for this hopefully never-to-be eventuality can easily help avoid greater legal costs and aggravation should something happen.
As a side note, while these documents all have required statutory language, not all healthcare proxies or powers of attorneys are equal. While basic language is included in all of them, usually seasoned attorneys who limit their practice to this area of law include additional language that provides for further protections as well as the ability to do overall better planning most comprehensively.
So, maybe it just never occurred to someone to plan for these possibilities, but often it is also something else. Who wants to think about one’s own mortality or incapacity? No one. Often people come to me and say, “I know I should plan but I don’t want think about it.” I get it—sticking one’s head in the sand is a much easier route. But I can tell you, the process of a plan is not as bad as you think and in the end, feeling control in an area of your life where you have none can be comforting. So taking care of these issues ahead of time is what gives us solace when things don’t go our way. That is what planning is—peace of mind.
By Lawrence Garbuz, Esq
Lawrence I. Garbuz, Esq. is a partner with the firm of Lewis and Garbuz, P.C. and has intentionally limited his practice to the fields of trusts and estates, elder law planning, estate litigation and guardianship. He may be reached at 212-867-9140 or at [email protected]. This article is for informational purposes only.
