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Estate Planning for Children Leaving the Nest

Published July 8, 2016 by Brady Cobin Law Group, PLLC

How is July so suddenly upon us? It’s astonishing how time flies. Hopefully, you are enjoying the summer, and taking advantage of all its leisurely pursuits.

For many families, summer marks the time for transition as the children prepare to begin (or continue) their college education. This usually coincides with the children reaching the age of majority, which in North Carolina is 18 years old. This is an interesting period as even though your child is emancipated, (what is often the case) he or she is still very much reliant upon your support for room, board and schooling.  Yet, despite this reliance, you are unable to do the things they were able to do for your child prior to gaining independence.

An important example of this is in the health care realm.  In 1996, President Clinton signed into law the Health Insurance Portability and Accountability Act (HIPAA) which created substantial privacy rights regarding patients’ medical records. When your child reaches the age of 18, HIPAA protects his or her medical records from being accessed by anyone else. While the law does provide some discretion for health care providers to release information if it is in the patient’s best interest, barring a prior written HIPAA release, there is no right, for instance, for a parent to have access to their child’s medical information.

While accessing your child’s routine medical information may not be of great importance, the analysis is quite different in the event of an emergency or catastrophic event. Here too, while before your child turned 18 you made all health care decisions for him or her, once he or she reaches the age of majority your ability to “make those calls” is not as cut and dry. Under North Carolina law there is a hierarchy of decision makers who may speak on your child’s behalf:

  1. His or her general guardian,
  2. His or her health care agent appointed by a valid health care power of attorney,
  3. His or her attorney-in-fact who is empowered to make health care decisions,
  4. His or her spouse,
  5. A majority of reasonably available parents and (adult) children,
  6. A majority of reasonably available (adult) siblings, and
  7. An individual who has an established relationship with your child, who is acting in good faith on behalf of the patient, and who can reliability convey his/her wishes.

In addition to the health care concerns, once your child reaches the age of 18, your ability to speak on behalf of your child regarding financial and related matters is also severed. Again, barring prior written authorization, this can create difficulties ranging from dealing with the routine – e.g. speaking with the school’s financial aid office – to the rare catastrophic situation – e.g. handling your child’s financial affairs and/or speaking to government agencies in the event of a disability.

If you’ve done prior estate planning for yourself, you should be familiar with the health care powers of attorney, advance directives, HIPAA authorizations, and durable powers of attorney, which all serve to ameliorate these concerns. This goes to show that estate planning is not simply for our older population. Rather, it is necessary for anyone over the age of 18 to plan for both the expected and unexpected. I would encourage everyone who has a family that is transitioning to young adulthood to consider establishing some very simple estate planning documents.

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