By Colin Smith | Contributor
In America, the 18th birthday is special: teenagers become adults in the eyes of the law. Parents don’t have say-so any longer. We can make our own choices and be held accountable for our own mistakes. We think, ah, Freedom! We expect to receive such freedom on our 18th birthday and that it will last for life—unfortunately, that isn’t always the case.
Guardianship is a legal process, which puts a person’s legal rights in the hands of someone else. In effect, the person is a child again (called a “ward,”), subject to the control of a legal guardian. It’s often necessary with elderly people with dementia; mentally impaired teenagers; accident victims; and any other situation where the wards aren’t capable of making decisions for themselves.
We Americans believe that age is a state of mind. You’re not crazy: your teenager may be more mature than your mom or dad. Junior may be a better driver than your mom. (Sidebar: hiding their keys doesn’t work. In one case I encountered recently, the mom would rent cars when she couldn’t find her keys.) If your son or daughter is acting more capable than your parents, it may be time to call a lawyer to evaluate the situation. When any of these situations arise, we need to see what legal documents exist. Strangely enough, the same documents apply to your parents and your teenagers!
What do we need to do before our kids leave for college?
When the student turns 18, but not before, have the student sign a simple estate plan. Parents should have copies of these documents, and the attorney should ensure that these documents are effective in the state where the student will attend college. As you know, kids lose everything. Parents should keep copies of financial aid information, any lease documents, contact information for any university’s clinic or health center, and contact information for roommates and their parents. It would also help if any of the student’s financial accounts are joint with the parents being the other party.
What do we need to have on hand to act on our adult child’s behalf or on our parents’ behalf?
A durable power of attorney (for financial decisions), medical power of attorney (for medical decisions), and a HIPAA release (for health care records) are important for everyone to have. Advance directives and Wills are morbid, but necessary. The guardianship in the event of incapacity is a way that a person can specify who they would prefer to have as a guardian if they must have one in the future. An advance directive, also known as a living will, is a way for adults to specify if they want to be kept alive on life support or not.
Do I need to change any of my documents?
A minor child becoming an adult is a life-changing event (for you as well as them), and this should cause you to review what you have in place and make any necessary revisions. It’s also a great entrance to talking with your own parents.
My parents will not give up control, and they won’t show me their documents. What do I do?
It’s tough. As long as your parents have capacity, much like your teenage adult, there’s nothing you can legally do. In my experience, those who appeal to their parents from a financial or historical perspective have the most success. If the family has ever been through anything that involves litigation or a difficult probate, they’ll usually want to avoid repeating the experience.
Editor’s Note: Reach Colin Smith at colin@colinsmithlaw.com or call 972.773.9095. www.ColinSmithLaw.com