June is a very exciting time for parents across the country. Commencement season is here and families are getting ready to send their graduates off to college. For many, this will be the first time that their child will be living on their own. Under New York State law, an individual is considered an adult at the age of eighteen. This means that parents who, as natural guardians, had the legal authority – and indeed the responsibility – to make medical and financial decisions and to access medical and other records for their children, no longer have that right. Before your graduate enters this new chapter of life, make sure that a Health Care Proxy and Power of Attorney have been implemented.
A Health Care Proxy is a document by which one designates an individual, known as the “agent,” to make health and medical decisions for them in the event they are, for any reason, incapable of making or communicating those decisions. These are decisions which, under New York law, concern diagnosis and treatment. The decision making authority can be broadened to specify particular services and procedures, the selection of the service providers and whether to continue or terminate life-sustaining treatment. This document will also allow the agent access to confidential health and medical records in the event of an emergency. The parent of a child who has reached the age of eighteen and does not have a valid and enforceable Health Care Proxy, has no legal authority.
A Power of Attorney is a document by which a child who has reached the age of eighteen can appoint an agent to manage financial and business matters. Often eighteen-year olds appoint their parent(s) and thereby extend their legal authority to access bank and financial records, handle insurance claims, file taxes, and generally act on their behalf. Traditionally, a Power of Attorney was broadly drafted, however, today many institutions, including banks, governmental agencies and insurance companies, insist that the specific act which the agent seeks to perform is expressly authorized by the document. For this reason, Powers of Attorney should be carefully reviewed to ensure their utility.
These two documents work best in tandem. But they must also be complete and validly executed to be effective. For example, the mother of a twenty-year-old college student commenced an action against the college, on her daughter’s behalf under a Power of Attorney, and alleged that her daughter had sustained serious injuries. However, because the Court concluded that the Power of Attorney had not been properly drafted, the document was considered void and the case was dismissed.
As important as these documents are for all of us, it is important that we send our children off to college with the protection of a valid Health Care Proxy and Power of Attorney as they embark on a new and independent chapter of their lives. Please contact our office and ask for one of us for a thorough discussion of the implementation of these important documents.