A durable power of attorney for your soon-to-be 18-year-old son or daughter? Aren’t these more suited for older adults? Not always.
Once your child is 18, he or she is an adult in the eyes of the law, whether or not he or she is still in high school. That reality will hit the first time you take that 18-year-old to the dentist or the doctor, or you try to check a bank account balance for that now-young adult.
He may still be the apple of your eye, but he is seen as a grownup by third parties. The doctor or dentist will ask the adult child whether he or she wants you to be dismissed while they speak, and the bank will not provide you any information about the account.
In decades past, children were not considered adults until they were 21. Now the age of majority is 18, in an era when we are seeing more and more children turn that magical age during high school. Many parents just assume that since the child is still in high school, they can continue to make medical, financial and other decisions for their child. More and more third parties are balking at that scenario and are less likely to take direction about these types of decisions from the parent.
The reality is that if something catastrophic were to happen to your 18-year-old, rendering him or her unable to make medical or other decisions, you would not be able to make those decisions for your child. In order to make those decisions, you would need to be his or her agent under a durable power of attorney or go through a court proceeding to be appointed a conservator and/or guardian.
The simpler route is the durable power of attorney. However, most parents are not thinking about their “child” needing a durable power of attorney during the senior year of high school. The family is more focused on senior pictures, prom, graduation and other memorable events. So the power of attorney does not happen.
Without a power of attorney, should your 18-year-old suffer an accident or illness, you will find yourself in the throes of the legal system, seeking to be appointed as a conservator and/or guardian of your own child. And that is just to be able to make time-sensitive, and often crucial, medical decisions, not to mention charting the waters of his or her finances.
While you can go to court to be temporarily appointed as a guardian — usually for a period of up to 90 days, it is a process, far more time-consuming than having the forethought to have your child execute a power of attorney. And if you think that was a process, the permanent guardianship is even more involved — it requires, among other things, a doctor’s letter, a significant notice period to the protected person, and a hearing in probate court before you are appointed as guardian and/or conservator.
Again, that power of attorney would have been far less stressful and time-consuming. That durable power of attorney is looking like a better option all the time, right?
The hardest part in all of this is helping your 18-year-old understand why you are suggesting he or she meet with an attorney to discuss probate and estate planning. Most 18-year-olds think they are invincible, and nothing is going to happen to them. I have found over the years that it is a bit easier to have this discussion with your young adult child when you are in the process of updating your own estate plan. You are already thinking about your own durable power of attorney and whom you would want to name as an agent under that instrument.
It is an easy transition to move from discussing your power of attorney to having the power of attorney conversation with your child.
While to some parents this discussion with their young adult child may seem awkward or unnecessary, it is, to the contrary, a necessary legal document in our ever-changing world. Indeed, it is a discussion this writer had, as a parent, with her own children when each reached the age of 18.
Jacqueline Gaithe is a partner at the law offices of Stinar & Zendejas LLC, 121 E. Vermijo Ave., Suite 200, 635-4200. She has a varied practice that includes probate and estate planning, estate administration and probate litigation.