Is Your Child Heading Off To College? Make Sure These Legal Documents are Available

Is Your Child Heading Off To College This Year? If So, Contact Us Today!

Sending your child to college is a major milestone but comes with important legal considerations. Now that they live independently, handling a medical emergency could be much more complicated. The Wall Street Journal makes the case that, as parents, it is critical to ensure your college-bound student has their documents in order. This way, you can help them if they need it in any situation.

Why are Legal Documents Important for College Students?

When your child turns 18, privacy laws restrict your access to their medical, financial, and academic records and prevent you from making decisions on behalf of your child. Having essential legal documents in place ensures you can support them in emergencies.  Here are four essential legal documents for college students.

HIPAA Waiver

A HIPAA waiver allows your child to grant you access to their medical records. Without this form, healthcare providers cannot share any medical information due to privacy laws. This waiver ensures that you can be informed about your child’s health and can make informed decisions in a medical emergency.

Medical Power of Attorney

A medical power of attorney designates someone to make medical decisions on your child’s behalf if they cannot communicate with their healthcare. If your child becomes incapacitated due to illness or injury, you’ll need this document to manage their care.

Durable Power of Attorney

A durable power of attorney for finances allows an agent to step into the shoes of another person and conduct financial transactions as if they are that person. This power of attorney can be effective immediately, or upon incapacity, and can ensure bills are paid and accounts are appropriately managed. This document is particularly important if your child is studying abroad or becomes incapacitated.

FERPA Waiver

The Family Educational Rights and Privacy Act (FERPA) is a federal law that affords parents the right to have access to their children’s education records, the right to seek to have the records amended, and the right to have some control over the disclosure of personally identifiable information from the education records. When your child turns 18 years old, or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student. A FERPA waiver allows your child to grant you access to their academic records. This can be important if you need to stay informed about their academic progress or assist in managing their education.

Why are Legal Documents Needed?

Without these legal documents, you could face significant challenges in assisting your child. For instance, if your child is hospitalized, you could be left in the dark about their condition without the right legal documents. You would also be unable to make decisions on their behalf to manage their care or finances.

How to Obtain Relevant Legal Documents?

These documents should be obtained through an attorney to ensure that they meet your state’s legal requirements. Please note that most of these documents require notarization. Here’s a brief guide on how to obtain each:

  • HIPAA Waiver: Obtained from an attorney or from your child’s healthcare provider.
  • Medical Power of Attorney: Obtained from an attorney to ensure it complies with state-specific laws.
  • Durable Power of Attorney: Obtained from an attorney to ensure it meets state legal standards.
  • FERPA Waiver: Available through your child’s college or university.

Do Legal Documents for College Students Vary between States?

The requirements for legal documents for college students can vary by state. If your child is attending college out of state, you may need to prepare valid documents for your home state and the state where your child studies. Consulting with an attorney helps properly prepare and execute all documents.

What If My Child Is Studying Abroad?

A durable power of attorney becomes even more crucial if your child studies abroad. This document ensures you can manage their financial matters and make decisions on their behalf if they encounter issues while overseas.

Secure Your Child’s Future Today

Preparing these essential legal documents for college students, and children over age 18, maintains their safety and your peace of mind. Don’t wait until an emergency arises; take action now.

If you need assistance preparing these legal documents or want to learn more about estate planning for your college-bound student, contact our office today to schedule a consultation. Our experienced attorneys are here to help you navigate these important decisions and ensure your child’s future is protected.

Key Takeaways

  • Access to Medical Information: A HIPAA waiver ensures you can receive updates on your child’s health in emergencies.
  • Medical Decision-Making: A medical power of attorney allows someone to make medical decisions for your child if incapacitated.
  • Financial Management: A durable power of attorney enables you to handle your child’s financial matters if needed.
  • Educational Records Access: A FERPA waiver lets you stay informed about your child’s academic progress.
  • State Compliance: Ensures documents meet specific state requirements, which is crucial if your child attends college out of state.
  • Peace of Mind: Having these documents prepared ensures you can support your child effectively in any situation.

Reference: WSJ (Aug. 14, 2023) “Before Your Child Goes to College, Complete These 6 Important Documents – WSJ”

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Should you Update your Estate Plan if you Move to a New State?

Moving to a new state might mean estate plan changes for legal reasons, but more likely because of your change in circumstances.

I recently had a discussion with a client regarding whether and how they should update their estate plan if they move to a new state.  That conversation comes up frequently, so I thought it would be a great topic for a blog article.

The U.S. Constitution requires states to give “full faith and credit” to the laws of other states. As a result, your will, trust, power of attorney, and health care proxy executed in one state should be honored in every other state.  However, even if they are “valid” in another state doesn’t mean they will work well under that state’s laws or that they will work as well in practice, as described in Wealth Advisor’s recent article entitled “Moving to a New State? Be Sure to Update Your Estate Plan.”

Your last will should still be legally valid in the new state. However, the new state may have different probate laws that make certain provisions of the will invalid or no longer ideal.  By way of example, Texas has a unique form of probate in which there is an independent executor.  This minimizes court involvement in the probate which is what most clients prefer.  We often revise wills of clients moving to Texas to authorize independent executors.  Similarly, other states might have other unique provisions that you would want to utilize in that state.

This can also happen with revocable trusts, however trusts tend to be more portable.  Once a trust is funded, you can change any provisions you need to ensure it works in that state and you can elect that state’s laws.  So, it might need to be updated, but often is more portability.

You may also want to update your estate plan if you move to a new state to change your powers of attorney and health care directives. These estate planning documents should be honored from state to state, but sometimes banks, medical professionals, and financial and health care institutions will refuse to accept the documents and forms.  Each state has very specific roles on how these are created and what they can accomplish, so it is typically advisable to create new ancillary documents based upon the law of the new state.

It is also helpful to keep in mind that it is practically important to redo ancillaries documents because lawyers and judges aren’t the ones reviewing them.  Court systems will know how a will or trust applies under that state’s law because lawyers are involved in the process.  Incapacity documents such as the power of attorney and health care directives are reviewed by non-legal professionals such as title companies, doctors, bankers or their support staffs.  So practically speaking, it is easier to give them what they expect to see as they won’t have the expertise to recognize whether an out of state document is valid.

You should also know that the execution requirements of your estate planning documents may be different, depending on the state.

For example, there are some states that require witnesses on durable powers of attorney, and others that do not. A state that requires witnesses may not allow a power of attorney without witnesses to be used to convey real estate, even though the document is perfectly valid in the state where it was drafted and signed.

When you move to a different state, it’s also a smart move to consult with an experienced estate planning attorney because interstate moves often mean another change in circumstances that would necessitate a change to the estate plan.  For example, the move might have been because of a change in income, marital state or to support a family member in ill health.  You can see here for other reasons to consider updating your estate plan at that point.  https://galligan-law.com/when-to-update-your-estate-plan/

Moreover, there may be practical changes you want to make. For example, you may want to change your trustee or agent under a power of attorney based on which family members will be closer in proximity or to someone familiar with the new property.  This is also a good time to review trust funding as you will have new assets.

For all these reasons, when you move out of state it’s wise to have an experienced estate planning attorney in your new home state review your estate planning documents.

Reference: Wealth Advisor (Jan. 26, 2021) “Moving to a New State? Be Sure to Update Your Estate Plan”

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