People tend to think of "estate planning" as something that is necessary for married couples, new parents, homeowners, the elderly, or individuals with significant assets. However, there are aspects of estate planning that are just as important for young people and which do not fit into any of the aforementioned categories.
In New York State, a minor is defined simply as a person who is under 18 years of age. Upon reaching the age of 18, a person may make their own health care decisions and the consent of their parent or guardian is no longer required. More importantly for this discussion, a parent or guardian of a child that has reached the age of 18 cannot make medical decisions for that person should they find themselves in a situation where that person is incapacitated or physically unable to communicate their own wishes. For this reason, it is imperative that your young adult has what are commonly referred to as "advance directives." These are documents that lay out a plan for future decision-making in the event an individual is incapacitated or otherwise unable to communicate their health care wishes (including psychological care) or manage their property (even if it's only a bank account). We will look at three of these documents in turn: the Health Care Proxy, Living Will and Power of Attorney.
Health Care Proxy: A Health Care Proxy allows an individual to appoint a health care agent and a successor agent to make health care decisions in the event they are unable to do so for themselves. This document takes effect when an individual becomes incapacitated or unable to communicate to medical personnel on their own behalf. This document authorizes the designated agent to select doctors and medical professionals treating the individual; to admit, discharge or transfer the individual from medical facilities; and to contract on behalf of the individual for medical services. A Health Care Proxy grants the agent authority to serve as the individual's representative under the Health Insurance Portability and Accountability Act of 1996, or what is commonly known as "HIPAA," to request and obtain all health and medical records of the individual. Further, this document authorizes the agent to execute, on behalf of the individual, any documents necessary to implement health care decisions, including documents pertaining to a refusal to permit medical treatment, authorizing the leaving of a medical facility against medical advice, or any waivers or releases from liability required by a physician or health care provider.
Living Will: A Living Will is a document in which an individual provides explicit instructions to be followed in the event they become unable to communicate decisions regarding their own medical care. These instructions can include the specific circumstances under which they want treatment provided or withheld, the types of procedures and treatment that are acceptable, and the handling of their organs upon their death. It is in this document where an individual can detail their wishes should they be in an incurable or irreversible physical or mental state with no reasonable expectation of recovery. A Living Will works in conjunction with a Health Care Proxy by providing a plan for the designated agent to follow to ensure they are acting in accordance with the individual's wishes.
Power of Attorney: A Power of Attorney relates to the handling of an individual's money and property. An individual, referred to as a "principal," gives an "agent" authority to spend their money or transfer their property in the best interest of the individual. This document gives authority to the agent to handle such things as banking transactions, governmental benefits and health care billing and payment matters. Of particular import regarding young people is the handling of digital assets. Digital assets refer to email accounts, digital music, photographs and videos, social network accounts, such as Facebook or Instagram, online bank accounts or stores and other similar digital items, such as websites. A Power of Attorney can give an agent all of the rights, powers and privileges that the principal has with respect to their digital assets. This includes the right to access, modify, delete, control and transfer digital assets; to access, use and control computers, tablets, phones, peripherals, storage media and similar devices for purposes of accessing, modifying, deleting, controlling or transferring digital assets; and to obtain, access, modify, delete and control passwords and other electronic credentials associated with digital assets. A Power of Attorney takes effect upon execution and allows the agent to act regardless of the capacity of the principal granting the authority.
The Health Care Proxy, Living Will and Power of Attorney all take effect during the life of an individual to ensure they receive the proper medical care in accordance with their wishes and their property, digital or otherwise, is managed in their best interest.
We start off the school year with hope and excitement of all the good memories our children are going to make. We look forward to fall holidays and being together as a family during winter break. We do not want to think about the "what ifs," but doing so in advance can ease the challenges we face under unexpected and trying circumstances. Making health care decisions and handling affairs on behalf of your loved ones who cannot do so for themselves is extremely difficult. However, the inability to act in the absence of advance directives, such as the ones described above, would be far more difficult if you had to stand by as a helpless observer unable to make vital decisions for your child while others make them for you. Preparing advance directives allow you to have a conversation with your child about what their wishes are. It also opens up the discussion as to your own wishes and can be a useful starting point for how to address these unpleasant but necessary topics as you and your child transition to a new relationship as parent and young adult.
At our law firm, we provide the Advance Directives for our clients free of charge with any Will or Trust plan. Please feel free to give us a call to schedule your consultation.