Does a parent have the automatic right to make the decisions for their children over eighteen (18) years of age?

In the past two weeks, I met with two families to assist them in their estate planning options. There was a common theme – each family thought that their children (all over 18) didn’t need their own individual planning because the parents would be able to  be in charge should the need arise.

Let’s take an example to illustrate:  Betty’s eighteen year old son, Sam, was involved in a motorcycle accident which left him unconscious and in a coma.  Can Betty legally make Sam’s healthcare and financial decisions now that he is unable to? No, Betty would legally be unable to do so just because she is Sam’s mother. If Sam had created Healthcare or Financial Powers of Attorney nominating Betty as his primary agent, then Betty would have the appropriate authority. However, the fact that Betty is Sam’s mother doesn’t give her an automatic right to make Sam’s decisions when he is unable to do so.

In our example, if Sam had not created Powers of Attorney, Betty would have to initiate a Guardianship/Conservatorship at the courthouse. This type of proceeding is called a Living Probate, and is very expensive, time consuming and can be humiliating.

And yet another more common example:  Susan and Bill’s eighteen year old daughter, Jill, is about to graduate from high school, and heading off to college in a few months. Will Jill’s parents be able to get access to her medical records should Jill end up at the hospital while away at school? Will they be able to tell the doctor which procedures to do on behalf of Jill? The answers are “No.”

In this common example, Jill is considered an adult, and must designate in writing who can step in and receive her health information or make her health decisions. If she does not do so, and becomes incapacitated, her parents will have to go to court to initiate a Guardianship/Conservatorship.

We can avoid this unnecessary cost and humiliation during our life. How? If you are over eighteen years of age, you need a properly drafted Healthcare Power of Attorney, Mental Healthcare Power of Attorney, Living Will, and Authorization to Disclose Health Information (HIPAA) which nominates an individual(s) chosen by you, not the court, to get access to and handle your medical decisions should you become incapacitated.

 

  Contributed by Morris Hall, PLLC Tucson, Oro Valley and Green Valley Estate Planning Attorney and Partner, Wendy W. Harn.

About Morris Hall, PLLC:
At Morris Hall, PLLC we have focused our legal practice on estate planning for over 45 years.  Along with estate planning, our attorneys help clients and their families with matters of probate, trust administration, wills, power of attorneys, business planning, succession planning, legacy planning, charitable gifting and other important legal aspects.  We also have divisions in financial, real estate and accounting to help you incorporate all of your planning together, ensuring that everything works perfectly for your needs and situation. Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Carefree, Tucson, Oro Valley, Prescott, Sedona, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.