Many of our clients are adjusting to life as parents or grandparents of college students for the first time this fall. Aside from the emotional adjustment that comes from watching our children graduate high school and leave home for the first time, parents must also adjust to the reality that, once our children turn 18, in the eyes of the law, they are full-fledged adults, and parents lose certain rights to information that they have become accustomed to having unfettered access to during their child’s formative years.
As parents often continue to be involved in helping their children manage both their personal and financial needs once they reach the age of 18, assisting young adults in executing advance directives can help bridge this gap of access to information for families where it is needed. Even for college students who value their independence, living away from home for the first time, while experiencing other challenges college life can present, can be a difficult transition for many young adults. Having advance directives in place can enable parents to better help their children navigate these new experiences while still affording them the independence they need to grow as students and people.
What Advance Directives May Be Recommended For College Students Over the Age of 18?
For college students over the age of 18, the advance directives that may be recommended include:
- A Power of Attorney, which allows a young adult college student to designate a person (or persons) who can assist them in managing their property and act on their behalf in addressing financial or legal matters. Practically speaking, for a child away at college, this can include assisting in managing student loans, making banking deposits and withdrawals, performing investment transactions, and signing authorizations on behalf of the student while they are away at school.
- A Health Care Proxy, which allows a young adult college student to make medical decisions on their behalf in the event that he or she is unable to do so, due to incapacity or a medical emergency which renders them unable to communicate regarding their wishes. A Health Care Proxy can signal to health care providers in an emergency who the designated point of contact should be for the patient’s family members, and can help avoid any period of confusion or hesitation that medical care providers might otherwise experience before sharing information regarding the student’s medical condition if a health crisis were to occur. Especially for young adults attending college in states where the lack of a Health Care Proxy would result in the need for court intervention in order to empower someone with the legal authority to make their medical decisions, having a Health Care Proxy in place is imperative.
- A HIPAA-compliant Release for medical information can allow parents access to their children’s medical records, updates from medical treatment providers about ongoing health needs, and other important medical information without the need for an actual emergency (as would be the case with a Health Care Proxy). This can be especially helpful where young adults may already struggle with health concerns, and parents would like to be able to monitor their conditions by accessing a health portal, for example, or follow up with a doctor about a recent medical issue.
- A “FERPA” release is a document which allows parents to access information regarding their child’s education records. Under the Family Educational Rights and Privacy Act or FERPA, once a student reaches the age of 18 or attends a post-secondary education institution, the rights to information and access to educational records previously conferred to parents under FERPA transfer from the parent to the child. By signing a FERPA release, students may consent in writing to allow their parents to have access to their education records, which many parents appreciate as they continue to support their children financially while they pursue their higher education degrees.
It is important to remember that children must have the legal capacity to consent to signing these advance directives, and must do so voluntarily – while parents can certainly speak about these documents with their children, it is ultimately up to the young adult whether or not to confer this legal authority to his or her parents (or to any other person).
Special Considerations for Parents of Young Adults with Special Needs
For parents of children with special needs, approaching legal adulthood can present a mix of excitement and trepidation. After a lifetime of advocating for their children and taking a very hands-on approach to meeting their needs, this transition can present lots of different feelings and challenges for parents and now-adult children alike. Having the proper legal mechanisms in place to allow for a supportive path toward independence – whatever it may look like for your particular child – is key in empowering both the child and their parents for the next steps in their life’s journey.
For young adults with special needs who are capable of understanding and knowingly consenting to signing these legal documents, preparing and executing advance directives are of paramount importance if they will be attending college or going away to school. These young adults may need a greater level of support from their parents, even as they chart out their own independent course for their future to the greatest extent possible, and these legal documents help to provide the safety net to allow parents to fully support their children as they grow and experience life on their own for the first time.
In other cases, where a young adult with special needs is unable to meaningfully comprehend or consent to advance directives, or where a more significant level of oversight and assistance is needed to provide for the young adult’s well-being and safety, parents may need to apply for legal guardianship for their child. Guardianship for adults with special needs, governed by Article 17-A of the SCPA in New York, allows parents to essentially continue to manage the needs of their child, the same way they have been doing throughout the child’s life, beyond the age of transition to legal adulthood. An experienced special needs law attorney can assist parents in navigating this process, and ultimately serve as their child’s legal guardian, so that they can ensure that their child’s needs are met, and that they live as independently and fulfilling a life as possible, well into their adult years.
