Your Child Just Turned 18: Do They Have a Durable Power of Attorney and Medical Directive?

A milestone for any parent occurs when their child turns 18. At this time of year, the 18-year-old may be anxiously awaiting a college admissions decision or otherwise deciding what the child’s next chapter will be after high school. Two significant items that should be at the top of the list of any parent whose child has turned 18 is to have the child execute a durable power of attorney and medical directive.

1. Durable Power of Attorney for Non-Medical Decisions
Once a child attains majority age (age 18 in most states), the child is of legal age to make the child’s own decisions. This is an opportune time for the 18-year-old, or any young adult for that matter, to execute a durable power of attorney to name one or more individuals, such as one or both of the child’s parents, to handle the non-medical affairs of the child if the child is unable to do so. For example, if a college-age child is studying abroad and the parent needs to access the child’s bank account to transfer funds to the child, sign the child’s income tax return, or deal with the child’s landlord, the parent cannot do so without the child’s consent. Further, if the child suffers a medical emergency and is unable to do any of these tasks on their own, the parent would have difficulty acting on the child’s behalf. With a durable power of attorney, however, wherein the child names the child’s parent (or other third party) as agent, the agent can conduct these and many other transactions on the child’s behalf. Significantly, without a durable power of attorney, if the young adult child is unable to handle their own affairs and the parent needs to act for the child for non-medical decisions, the parent would be required to file a court application to be named the guardian of the child—which most often is a costly and emotional process for the family. A durable power of attorney becomes effective immediately upon execution of the document by the child. An alternative form of power of attorney called a “springing” power of attorney can be implemented due to the child’s incapacity or inability to handle the child’s own affairs. The “springing” power of attorney typically becomes effective or “springs” into place only upon the confirmation from at least one physician familiar with the child’s medical history that the child is unable to act on their own. As a practical matter, the durable power of attorney is more commonly used.

Common powers to include in the power of attorney are powers to conduct banking or financial transactions; manage insurance transactions, lawsuits, and litigation; deal with real estate; and act for tax matters. With the omnipresent social media world, another common power to include is the power of an agent to access “digital assets” on behalf of the principal. New Jersey, like many other states, has codified its own law in this regard for New Jersey residents who execute a power of attorney, last will and testament, or other estate planning document. This law—The New Jersey Uniform Fiduciary Access to Digital Assets Act enacted in 2017—allows an agent under a power of attorney (or will or other estate planning document) to have access to and manage digital assets of the principal. N.J.S.A. 3B:14-61.1 et seq. Under this New Jersey law, a “digital asset” is defined as “an electronic record in which an individual has a right or interest.” N.J.S.A. 3B:14-61.2. This commonly means email accounts, text messages, social media accounts like Facebook and Instagram, cloud-based storage accounts like Dropbox, and online financial accounts. Under this act, as long as the adult child has not otherwise named someone to have access to the digital asset through the online custodian (such as under a term-of-service agreement between the individual user and a custodian like Google or Facebook), the adult child can provide in a power of attorney that the child’s parent (or other agent the child designates) is authorized to access the child’s digital assets, including the content of electronic communications sent or received by the child.

2. Medical Directive/Living Will for Medical Decisions
Similar to the durable power of attorney, once a young adult child attains majority age, they should execute a medical directive wherein the child names an individual (likely the child’s parent) to make medical decisions for the child if the child is unable to do so on their own. You likely have heard stories about a student who, while at college, was ill in the college infirmary but because the child was an adult, federal HIPAA privacy laws prohibited the adult child’s physician from discussing the child’s medical condition with the child’s parent without the child’s consent. (Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, Aug. 21, 1996.) Without the child’s consent, the parents also would not have the authority to obtain the child’s medical records or to make medical decisions for the child if the child is unconscious. This is true even if the young adult child is still covered by the parent’s health insurance. Thus, it is critical that the young adult child execute a medical directive to name a designated health care representative who could act on the child’s behalf to make medical decisions, communicate with the child’s doctors and nurses, and also have access to the child’s medical records. Most likely, for an 18-year-old college student or single young adult, the health care representative would be the child’s parent. It is important that the medical directive has a HIPAA-related clause that covers protected health information so that, for example, the parent, if named as the health care representative, can request copies of X-rays or transfer of medical files to the family physician. The medical directive also can contain a living will component to express the child’s intentions as to whether the child would want extraordinary medical procedures, such as a ventilator or cardiac resuscitation, to prolong life in circumstances where death was fairly imminent. While an 18-year-old may not be ready to decide whether or not they would want extraordinary medical procedures to prolong life, at a minimum by designating the child’s parent as the health care representative, the child enables the parent to make these health care decisions on the child’s behalf, including whether extraordinary medical procedures should be employed.

Of course, a durable power of attorney and medical directive are key estate planning documents for any adult to have and, once executed, they are revocable documents that can be changed as necessary. Oftentimes, these documents can be overlooked when thinking about sending your 18-year-old off to college or for your recent college graduate who is busy starting their professional career. Having these documents in place will certainly provide peace of mind to both parent and child.

Rita M. Danylchuk is a counsel in Gibbons’ corporate group and leads the firm’s trusts and estates practice, representing clients in all areas of trust and estate planning and estate administration. She can be reached at rdanylchuk@gibbonslaw.com.

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Reprinted with permission from the March 19, 2024 issue of the New Jersey Law Journal. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.