Two Basic Legal Documents for Your College Student
Your child may well be on the path to independence, but it is likely that he or she will still need your assistance while away from home. Fortunately, there are simple documents we can prepare to enable you to continue managing the most important decisions in your child’s life, namely, his or her health care and financial decisions. Your child may well be on the path to independence, but it is likely that he or she will still need your assistance while away from home. Fortunately, there are simple documents we can prepare to enable you to continue managing the most important decisions in your child’s life, namely, his or her health care and financial decisions.
The Durable Power of Attorney
What Does It Do?
A Durable Power of Attorney (“POA”) allows your child to appoint you (or any other adult) to make financial decisions on your child’s behalf. If appointed, it will allow you to access your child’s bank accounts and financial records, financial aid and tax information, to pay bills, credit cards, rent, and other obligations, and to manage investments and loans. This can be particularly helpful if your student is navigating financial aid paperwork, dealing with insurance, renting an apartment, and travelling abroad.
When Does it Become Effective?
There are two kinds of POAs. The first becomes effective immediately, meaning that you can begin managing your child's financial affairs as soon as the form is signed. The other kind is a "springing" POA, which becomes effective upon your child becoming disabled or incapacitated. The choice of which kind of POA is appropriate is up to your child.
What If My Child Will Be Living Out of State?
As Massachusetts estate planning attorneys, our POAs are drafted to comply with Massachusetts law and are therefore enforceable in this state. Our POAs also comply with requirements in most other states. Moreover, most states will recognize a properly drafted Massachusetts POA. While we cannot guarantee enforceability, we can discuss the laws of your child’s college state with you in more detail. It is likely that a Massachusetts POA will be sufficient and probably best to get one done now instead of waiting for the need to arise later.
The Health Care Proxy
What Does It Do?
A Health Care Proxy (“HCP”) allows your child to appoint you (or any other adult) as his or her “health care agent” to make medical and health care decisions if he or she is unable to make or communicate decisions his or herself. While your child may think he or she is invincible, medical issues may arise while he or she is away. A well-draft HCP, then, is essential to providing continued management of your child’s health care.
Will I Be Able to Access Medical Records?
With a HCP, your child can include a HIPAA release that will authorize you to continue to access your child’s protected medical records and information should the need arise.
Is a Health Care Proxy the Same as a “Living Will”?
No. These two documents are different. A living will is a document that sets forth rigid advance instructions regarding one’s medical treatment to be implemented by medical care providers. The HCP, in contrast, appoints a representative – the health care agent – to make those decisions as the need arises. In this way, the HCP is much more flexible than a living will. Massachusetts law does not recognize living wills, meaning that they are not enforceable. Nevertheless, a HCP should include “living will” provisions that provide non-binding guidance to the agent regarding end-of-life decisions.