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Young Adults and Estate Planning: Eighteen Changes Everything

January 2, 2024
NCAA

They are your kids… they still need you, but the moment they turn eighteen, it can become a little more difficult to be there for them when it matters most. At the age of eighteen, Ohio law recognizes your child as an independent legal adult. Along with this new independence comes the freedom to designate who they trust to help them when they cannot help themselves. While it may seem obvious to you that they would choose to depend upon you, the law does not assume such a conclusion. To avoid the need for the appointment of an emergency guardianship over your adult child or navigating Ohio’s complex rules for decisions by an adult child’s next-of-kin, here are four steps to take now that will make save valuable time and money in the event you need to step in on your child’s behalf:

  • Designate Power over Health Care Decisions
  • Obtain Access to Medical Information
  • Empower Financial Access
  • Secure Rights to Final Decisions

Designate Power over Health Care

The ability to make medical decisions on behalf of your child is of utmost importance in an emergency. When time is of the essence, there is no room for delay. Particularly, the last thing you need is a delay at a hospital or care facility over your legal authority to act especially when such a situation can be avoided. To avoid any legal ambiguity and secure decision-making priority, your child can formally designate such legal authority to you through the execution of a health care power of attorney.

A health care power of attorney is a document wherein your child can name you as their agent for making medical decisions on their behalf when they are unable to make such decisions for themselves. In Ohio, the health care power of attorney is effective when your child’s attending physician determines that they have lost the capacity to make an informed decision on a health care matter. So, if your child is unconscious or unable to communicate, you will be vested authority to take quick action on their behalf. This action including consenting or withdrawing consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition. Most health care powers of attorney also empower an agent to also make end of life decisions. However, if your adult child has strong feelings regarding end of life care and wishes to take that decision off of your shoulders, they have the ability to also execute a living will, which allows your adult child to decide for themselves whether they wish to continue or withdraw life-sustaining treatment if they are in a terminal condition or in a permanently unconscious state.

To be valid, your adult child must execute these documents before a notary public or two adult witnesses, who are not related to them by blood, marriage, or adoption.

Obtain Access to Medical Information

The Health Insurance Portability and Accountability Act of 1996, or commonly known as HIPAA places strict privacy and security around medical information. As a result of HIPAA, your adult child’s medical information will likely be shielded from view, even if your child is on your health insurance policy or you are paying for their care. Providing the best care for your child requires making informed decisions. Access to essential information to make such decisions can be best secured through your child signing a HIPAA release form authorizing you to access medical information, including the ability to talk with their medical providers.

Empower Financial Access

Like medical information, your adult child’s financial information belongs solely to them and even though you may make deposits into their accounts, you will not have access to information, such as balances and transactions, without additional authority. A general durable power of attorney is a document that your child can execute granting you the authority to access and help manage their financial affairs. Such authority can include helping them manage investments, acquire and sell assets, file tax returns, and to act on their behalf in legal affairs. Absent a power of attorney, a formal guardianship may be needed to manage your adult-child’s financial affairs. So, a simple durable power of attorney can save valuable time and money.

One word of caution, it may be tempting to add yourself as a joint owner of an account or asset with your adult child to retain access to or information about the asset. However, this legal arrangement comes with added risks for your child as it exposes their assets to the consequences of your actions or legal liabilities. For example, if you are at fault in an accident or found liable in a civil matter, a plaintiff or judgment can take the joint asset to the detriment of your child. A durable power of attorney will allow you to access the asset and information about the asset while maintaining a legal separation from you and that asset, keeping it out of reach from a plaintiff or creditor looking for your assets.

Secure Rights to Final Decisions

In the event of the unthinkable, the last thing you want is any delay or impediment to your ability to make decisions regarding your child’s final wishes upon death. To avoid such delay and potential roadblock to your ability to honor your adult child, your adult child can execute a final disposition authorization and instruction. These final decisions include rights to make decisions regarding funeral or memorial services and decisions about their burial or cremation. A properly drafted authorization regarding the disposition of their body can also secure authority for you to request or consent to an autopsy or post-mortem examination. Additionally, a carefully drafted authorization can include specific details reflecting your child’s preference of where to be buried or how to handle their cremated remains all while memorializing any preferences based in culture or religious belief.

For more information regarding estate planning for young adults, contact Tim Wilson at TSW@kjk.com or anyone in KJK’s Estate Planning group.