Why Your High School Grad Needs These Advance Directives

May 17, 2023

 It’s that time of year when high school graduates are prepping for their next chapter in life – heading off to college, starting anew job, or enlisting in the military.  

While your young adult is not likely to forget their bedsheets and mini fridge when heading out the door, these four important legal documents are often overlooked: Power of Attorney, Healthcare Power of Attorney(also known as Healthcare Proxy or Healthcare Representative), HIPAA Waiver and FERPA Waiver.

 Even though your high school graduate may still be your baby, once an individual turns 18 years old, they are legally considered an adult and are entitled to certain rights and protections under federal and state laws. Without these four documents in place, if something were to happen to your18-year-old, you would not be able to make decisions or access information on his or her behalf.

The Risk of Not Pre-Planning

For example, Jake is eighteen and a freshman in college. One day, when playing basketball with his buddies, Jake suffers a serious accident and hits his head, causing a traumatic brain injury where he is in a coma for several days.

When hearing the news, Jake’s parents are devastated and immediately drive down to the hospital. However, when they arrive, they are shocked to learn that they cannot make any medical decisions on Jake’s behalf. Because he is over the age of 18 and does not have a power of attorney in place, Jake is legally considered an adult and responsible for making his own medical decisions.

Jake’s parents are told they need to go to court and obtain guardianship over Jake in order to make any decisions about his medical treatment. This process would take months and cost upwards of $3,000. In the meantime, Jake’s care would be guided by the hospital’s medical ethics committee.

Imagine Jake’s parents, knowing that their son’s medical care was decided by strangers with little input from them, Jake’s lifelong advocates until now.

This is every parent’s nightmare. But the good news is –with a few simple steps, this scenario can be avoided entirely.

Unsure what these documents are and where to start? Let’s dive into each of them and why they are necessary.

What is a Power of Attorney?

A power of attorney is a legal document that authorizes someone (the “agent”) to act on behalf of another person (“the principal”) in legal and financial matters.

Having a durable power of attorney in place is important for a couple of reasons:

·   Financial Transactions: Your 18-year-old may need your help managing bank accounts, paying bills, filing taxes or signing legal documents. If they are unable to handle financial transactions due to physical or mental limitations, a power of attorney can give you this authority.

·   Study Abroad: Is your 18-year-old planning to travel or study abroad? If so, they will want to appoint someone power of attorney to handle their affairs while they are away.

·  Military Service: The same may be said for an 18-year-old planning to join the military. They will want to designate someone to manage their finances, pay bills and make legal decisions on their behalf.

What is a Healthcare Power of Attorney?

A healthcare power of attorney, also known as a healthcare proxy, is different from a durable power of attorney in that it designates someone specifically to make medical decisions on another’s behalf.

Here are a few reasons why your 18-year-olds should designate a healthcare representative:

·  Medical Emergencies: If your 18-year-old suffers a serious illness or injury and becomes incapacitated, you will need a healthcare power of attorney to make decisions on their medical treatment.

·  Chronic Illness: If your child has a chronic illness that may require ongoing treatment, it will be important for them to appoint a healthcare power of attorney to ensure their wishes are carried out if they are unable to make decisions for themselves.

·  Travel or Study Abroad: Similar to the financial power of attorney, if your 18-year-old is planning to travel overseas, they will want to appoint a healthcare power of attorney in case something happens and they need you to make medical decisions on their behalf.

What is a HIPAA Waiver?

Now that your 18-year-old is legally an adult, they have the right to privacy of their medical information. This information is protected under the Health Insurance Portability and Accountability Act (HIPAA).  

This means that if you, or others, need to access their medical records to make medical decisions on your child’s behalf, you’ll need to sign a HIPAA waiver. Having a signed waiver allows healthcare providers to disclose your 18-year-old’s medical information to designated individuals without violating their privacy.

Like the healthcare representative, a HIPAA Waiver will be important in medical emergencies, chronic health conditions, mental health conditions, or if your child is planning to travel or study abroad.

What is a Family Education Rights and Privacy Act (FERPA) Waiver?

While the Power of Attorney, Healthcare Power of Attorney and HIPAA Waiver are applicable to any adult over the age of eighteen, the FERPA waiver is particular to those pursuing further education after high school graduation.

FERPA, or the Family Education Rights and Privacy Act, is a federal law that protects the privacy of student education records. The law applies to schools that receive funds under an applicable program of the U.S. Department of Education.

When do FERPA rights begin?

FERPA rights begin for a student when they enroll in a school that receives federal funding. At that point, the school must inform the student and their parents of guardians of their rights under FERPA.

When do FERPA rights end?

Generally, once a student turns 18 or enters a postsecondary institution, such as college, FERPA rights transfer from the parents to the student. This means the student has the right to access and control their education records, and the school may not disclose information from those records without the students written consent.

Therefore, a FERPA waiver refers to a waiver of the rights afforded to students under the Family Educational Rights and Privacy Act (FERPA). By signing this legal document, your young adult is giving written consent to disclose their records to third parties, including parents, guardians, future employers and other institutions.

Should my 18-year-old sign a FERPA Waiver?

Here are a few reasons your student may want to sign a FERPA Waiver:

·  Parent Accessibility: If your 18-year-old wants you or other family to have access to their education records, such as grades, transcripts, attendance records and disciplinary records, then a FERPA waiver is necessary. It is also helpful if your child needs assistance with academic or financial matters.

·  Parent Collaboration: If a FERPA waiver is signed, parents and guardians can work with the school to address any issues or concerns related to your child’s education. This can facilitate communication and collaboration between your student, you and the school.

· Study Abroad & Other Programs: Some schools will require a signed FERPA waiver if your student wants to participate in specific programs, such as study abroad programs or internships.

 It’s important to note that by signing a FERPA Waiver, your 18-year-old is giving permission to the school to share their records without consent.

When does my young adult need these documents?

In the U.S., once a child turns 18 years old, they are considered a legal adult and are responsible for making their own decisions, including medical and financial decisions. It’s generally recommended that your child get powers of attorney in place soon after turning 18, to ensure that someone is authorized to make decisions on their behalf in case they become incapacitated or unable to make decisions for themselves.

How do I get these documents in place before my kid leaves home?

An estate planning attorney should be able to assist in getting these documents signed and in place for your child. However, the process can take time and can be relatively expensive to do on short notice.

 To make it easy and affordable for parents and their young adults get these documents in place, we’ve created a Young Adult Advance Directive package that includes templates for a general durable Power of Attorney, a Healthcare Power of Attorney, a HIPPA Waiver and a FERPA Waiver. All you and your child need to do is:

1.     Click here to purchase and download the documents.

2.     Fill them out according to the provided instructions.

3.     Schedule a time with us to notarize and sign them.

By downloading these now, you can rest assured that your child is protected should anything happen to them. There is nothing like peace of mind for parents as their young adults embark on the next adventure!

For any questions, concerns or further information, please feel free to reach out to our firm at 317-492-9569 and a representative will be happy to help!

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