Consider the following true story.
A child leaves his parents’ Texas home to attend college in Florida. When he is 19 years old and still attending school in Florida he is in a serious car accident, requiring a Care Flight to the nearest trauma center. His parents are notified by a school friend and immediately leave Texas for Florida. Upon arriving at the hospital in Florida, the doctors will tell the parents nothing about the status of their child’s condition or injuries.
After several days in recovery, the hospital will not release the child upon the parents’ request to relocate him to a rehabilitation facility in Texas. The child’s landlord will not allow the parents to break the child’s lease. The parents return home to institute a very costly and, at this point, a time-consuming, guardianship proceeding. They return to Florida with their stack of court papers, collect their child, take care of his lease arrangement and return home to Texas for months of physical therapy and rehabilitation.
What happened? Weren’t they his parents? Couldn’t they speak for their own child?
Legally, the answer is "NO." While the thought of something happening to our children that might leave them unable to speak for themselves is a difficult topic to consider, much less fully discuss with them, we think it is an important topic to address—before your children leave home.
Your child is away at college and has his identity stolen and needs help dealing with the financial institutions or credit card companies. Without the proper documents in place the financial institutions cannot authorize you to access the bank account or credit card account in an attempt to manage or reconcile the problem. What can you do?
The legal age of majority in Texas, and in many other states, is 18. While most of us who have long surpassed the age of 18 still consider an individual of this age to be a "child"…legally, that "child" is an adult who is responsible for his or her own decision-making. Absent proper estate planning, there is no legal right for parents to make decisions for their children after they attain the legal age of majority.
When we think of "estate planning," we often think of death and dying and things you take care of later in life. However, estate planning involves not only death-time planning, but also lifetime planning for incapacity or disability. When our clients come to us to discuss estate planning, we often ask them if they have college-aged or unmarried children. If so, we strongly urge them to have documents prepared that will allow the parents to act like "mom and dad" in the event of an emergency situation, disability or other incapacity—whether temporary or permanent.
We recommend the following documents:
- Statutory Durable Power of Attorney
- Medical Power of Attorney
- HIPAA Authorization
- Directive to Physicians ("Living Will")
Lori Ashmore Peters and Gary Ashmore, owners of The Ashmore Law Firm, P.C., handle Probate and Estate Planning matters. They are members of the Probate Section of the Dallas Bar Association. They can be reached at 214.559.7202.