As Spring comes around, for many parents and their children an exciting new chapter opens. After a year or more of anticipation and anxiety, college decisions are finally being released, deposits are being placed, and plans are being made. While your college-bound student breathes a sigh of relief and begins to fantasize about the future, your mind may turn toward more practical matters.
For their entire lives, you, as a parent have been there to help them with every decision that needed to be made, appointment that needed to be scheduled, and issue that arose. Now they’ll be away from you, and in many ways, that is a great thing. They’ll learn independence and begin to take on responsibilities and gain the skills they will need to make it in the world. That doesn’t mean they won’t still need you, though.
While I can’t make the transition and emotional difficulty of letting go any easier for you, I can provide you with a few simple tools that will ensure you may intercede on your young adult’s behalf, when it is necessary. There exists a very simple, two-document package that I refer to as the Scholar’s Directives, that will enable you to make any medical decisions or financial decisions on behalf of your child that may arise. In New York, they are referred to as the Power of Attorney, and Health Care Proxy (although in some states the Health Care Proxy is referred to as the Medical Power of Attorney). So, what are these documents, what do they do, and how can you execute them?
The Health Care Proxy
The Health Care Proxy, in New York, is a statement made by the principal person appointing someone else, and potentially a backup person, to make medical decisions on their behalf, if they are not able to. New York State law does not allow for joint appointments to this role, but that exception varies by state. By executing this document, your child makes a clear and legally binding statement that you are the person they trust to make medical decisions for them in their stead. This document is particularly useful in households of divorce. In situations like these, the Health Care Proxy eliminates all possible ambiguity. This form also often serves as a Health Insurance Portability and Accountability Act (HIPAA) release, meaning you would be authorized to see your child’s medical records, when necessary.
The Health Care Proxy is a simple form to execute. It requires the full name of the principal (your child), and the full names, addresses, and phone numbers of the proxy and their backup. When our firm executes Health Care Proxies, we also include the email addresses of the agents, although that is not a requirement. The key is to ensure the medical professional looking at this form will be able to contact you if necessary. The principal must sign the document in the presence of two witnesses, who are not named in the document. Although not required in New York for a valid Health Care Proxy, our firm also likes to include the signature of a Notary Public, for added “oomph.”
Once you have an executed Health Care Proxy, we recommend sending a copy to your child’s primary care physician. Ask that they include it in their medical file. That way, should something happen, regardless of whether it’s at home, away at school, or on Spring Break at the Outer Banks, when a medical professional looks to see who this person is, what allergies they may have, and which insurance they may be on, they will also see that you are the person to call in case of emergency.
The Power of Attorney
The Power of Attorney is an incredibly potent instrument. In New York, an unmodified Power of Attorney with every provision executed names an agent to make decisions in all non-medical matters. The principal can name a single agent, seriatim (one-at-a-time) agents, or joint agents. If the principal (in this case, your child) decides to name joint agents, they can stipulate that either has the power to act separately or your child may restrict their agents’ power to only act jointly.
In New York State, the statutory Power of Attorney form also allows for modifications that make it perfect for a young scholar. The right modifications and granted powers allow your child to maintain the independence they likely crave while also ensuring that your steady hand is there to catch them if they stumble and handle the issues they aren’t yet ready to deal with.
We recommend that young adults execute the Power of Attorney in a way that grants their agent authority to handle chattel and good transactions (that’s things like furniture, clothing, books, etc.), banking transactions, insurance transactions, lawsuits and litigation, benefits from governmental programs or civil/military service, financial matters related to health care, and tax matters. However, we also include in our modifications a provision limiting the agents’ authority to matters relating to enrollment at college or university, while also supplementing the powers to broaden them to all matters relating to enrollment at college or university. We also encourage the inclusion of a Guardianship modification, which permits the principal (your child) to assert that their first choice in case of a need for a court-appointed guardian is you, their agent(s).
While the first modification does limit the applicability of your powers, we believe that this is ideal for the purposes of this package. You want to be there if your child needs you, and they need the assurance that you won’t be smothering them into adulthood. By limiting your powers to those surrounding their attendance in college, you strike that balance.
To execute the Power of Attorney, the agent must initial each power and modification and sign the document in the presence of two witnesses and a Notary Public, and the agent(s) must sign in the presence of a Notary as well. The agent does not need to sign at the same time as the principal, but if you are able to get a Notary, you might as well kill two birds with one stone.
A healthcare safety-net for your college-bound child
Each state is different and will have its own forms. While the Full Faith and Credit clause means New York forms will be accepted out of state, it may be wise to look into the form of the state where your student will be going to school. In an emergency, it is always preferable to have a familiar document over a strange one that does the same thing.
There is no limit on how many Powers of Attorney or Health Care Proxies a person may have, so if you would like to execute one set of New York documents and one set of documents for the state in which your child will attend school, that may be a wise course of action.
Down the road, as your child ages and potentially finds a partner, these Powers of Attorney and Health Care Proxies are revocable, and the agents named in both can be changed for someone else, when that time comes. Because of the ease of execution, our firm does not charge to redo these documents. Other practitioners may also offer this courtesy.
What other documents do college-bound children need?
There are a few other documents our firm includes with our usual suite of “Advance Directives,” that are not typically included in the “Scholar’s Directives.” These are a Living Will and Appointment of Agent to Control Disposition of Remains. The Living Will, which in other states is included as part of the Health Care Proxy, enables the principal (again, your child) to describe their wishes for care, and the withholding of care. The Appointment of Agent to Control Disposition of Remains allows them to name an agent and two successors to control the final disposition of their body, and to describe their wishes for funerial services and burial, cremation, etc. We don’t usually include these with the Scholar’s Directive package because of their sensitive nature. However, depending on the maturity of your child, they may be something you wish to discuss.
Do you need to keep copies of all documents?
Yes. While the original documents should not be necessary, and a photocopy should be sufficient to use the documents, the nature of the Power of Attorney is such that institutions can be sensitive about accepting the document. Should that be the case, knowing where you have the original and presenting that can often ease tensions. We recommend keeping your child’s Health Care Proxy and Power of Attorney documents somewhere safe but accessible. If an institution continues to push back, we recommend seeking counsel from an attorney. Often a strongly worded letter from a legal professional can get the institution’s wheels turning.
If you have questions about the Scholar’s Directives, protecting your children, or estate planning in general, let’s talk! Our team is always happy to answer questions. If you’d like to schedule a no-cost consultation, use the “contact us” form below, or reach out to firstname.lastname@example.org or call us at 212-867-9120.