Your babies aren’t babies anymore ̶ they’re 18.
As more and more of my clients’ children, or even grandchildren, are turning 18, certain legal obstacles are popping up. Nowhere is this more prevalent than with medical information. Parents are trying to get medical records to their graduating senior’s college of choice only to be told by the pediatrician’s office that their child now has to sign release forms. “Eighteen years I’ve been coming here, and this is the first time you’ve ever required my child to sign something!”
The fact is, though, that signature is now needed precisely because it has been eighteen years since your child was born, and this is the first time you are trying to get information regarding your child since they became a legal adult. I was reminded of this fact when I read an article about a mother who was not allowed to make medical decisions for her son who was still in high school, and he was lying in the hospital in a coma. Problem was he was already 18, a legal adult, and he didn’t have a healthcare power of attorney. The mother was told she had to have him declared incompetent by a court and have herself assigned as legal guardian.
Boy, do we get calls.
Our office has received quite a few phone calls after that article appeared. My office has responded by them telling our clients that, yes, it probably is a good idea if their children have at least a health care power of attorney and a financial (durable general) power of attorney so their parents can handle decisions if they can’t. But a few of the conversations have gone like this:
Client: “So it is a good idea if my college-aged children have power of attorney documents?”
Staff Person: “Yes, definitely.”
Client: “Good, please have the attorney go ahead and set those up.”
Staff Person: “Great, how is the best way for us to arrange a phone call with each of your children to talk to the attorney?”
Client: “What does he need to talk to them for?!”
It’s now your child’s decision, not yours.
Our office can prepare those documents for our clients’ college-aged children (who still consider their residence to be North Carolina), but those children are now additionally becoming our clients. As such, they have to talk to us to make sure they want the documents; they get to choose the people they want as their health care and financial agents; and our discussions with them are protected by attorney-client privilege — even from you. So that means the children get to have the documents and discuss things with us, and we have to keep their conversations with us private, even from their parents. And that applies even if the parents are paying for their documents. (For the record, most of my clients’ children go along with their parents’ recommendations anyway, but we can’t tell you whether that is true for your particular child or children.)
So why does it have to be this way?
Because the North Carolina State Bar says so. An attorney can get into trouble for a violation of ethical rules by preparing a power of attorney document for signature without consulting with the client. Throughout history there have just been too many instances of fraud and coercion using power of attorney documents that people “persuade” others to sign without the independent advice of an attorney looking out for the person signing the document.
So does this mean that the child can choose someone other than their parent to power of attorney for health or finances? Yes. Yes, it does. But it is our hope that they will continue to rely on their parents in the case of an emergency, or if not their parents, then some trusted family member like a grandparent, or an aunt or uncle. But it is better to have some clear succession of people who can make decisions in a crisis who may not be exactly the people you would pick for your children, especially when the alternative is to go through a court proceeding to let the court sort it out.
For more information on health care power of attorney and financial power of attorney, please call me office at (919) 844-7993. We have kind and caring staff who are here to help you.