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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A Well-Rounded Estate Plan Addresses Cognitive Decline

Estate planning is a roadmap for transferring a person’s assets upon their death. It preserves their value and lays out the distribution of assets to the beneficiaries. One overlooked but essential aspect of estate planning is a strategy to manage and maintain an estate’s assets if the owner loses cognitive functioning and cannot make sound decisions.  This is generally referred to as incapacity planning.

A recent case highlighted by Alan Feigenbaum in J.D. Supra’s article “Confronting Cognitive Abilities in Well-Rounded Estate Planning” reminds us of the complexities and challenges that can arise when cognitive decline is not adequately addressed in estate planning.

The case involves an 80-year-old retired advertising executive, referred to as K.K., who suffered from severe delusions. Influenced by a fraudulent business associate, K.K.’s delusions led to misguided investments that resulted in a significant financial loss. Despite the clear signs of cognitive impairment, K.K. continued to engage in financial decisions that jeopardized his estate’s financial well-being.

K.K.’s son filed a petition to appoint him guardian of his father’s estate to prevent further loss. This situation underscores the need for an estate plan that includes managing the assets and protecting the estate’s value, if the individual is cognitively or mentally impaired.

Key Takeaways

  • Plan Early and Consider Cognitive Decline: Begin estate planning early and include provisions to carry out plan directives, if cognitive functioning is impaired.  This may include purchasing long-term care insurance, or discussing your concerns with trusted loved ones who can watch for signs of decline.
  • Incorporate Safeguards: Estate plans should have safeguards, such as durable powers of attorney and trusts, which empower trusted individuals to manage your affairs if you become incapacitated.  It is also important to update these documents as you suspect decline, the issues in a simple estate plan when you are 30 are different than the issues in a plan considering cognitive decline in your 80’s.
  • Regular Reviews and Updates: Review and update your estate plan regularly to reflect changes in circumstances, including health status.
  • Professional Guidance is Key: Navigate the complexities of estate planning with an experienced estate planning attorney. An attorney will structure your estate plan to address potential cognitive decline.

Conclusion

K.K.’s court case underscores why a well-rounded estate plan includes a strategy to protect and manage assets when an individual lacks the cognitive capacity to make decisions. Proactive strategies prevent financial loss and reduce the emotional turmoil when caring for a cognitively impaired loved one. Estate planning gives you the peace of mind that your wishes will be honored, even in mental decline.

Reference: JD Supra, (March 2024), Confronting Cognitive Abilities in Well-Rounded Estate Planning

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Four Overlooked Elements in Estate Plans

When creating an estate plan, there are details which seem minor but are actually very important.  It is helpful, when creating an estate plan or reviewing your existing one, to check for these key estate plan elements, says a recent article from mondaq, “Four Provisions People Often Forget To Include In Their Estate Plan.”

Don’t forget to name alternative beneficiaries and fiduciaries. If the estate plan names a beneficiary, but they are unable to take possession of the property, or they are deceased, the asset may go to someone untended, or even as though you have no estate plan at all. In other words, the state will determine who receives the property, which may not be in accordance with your wishes. If there’s an alternate beneficiary, the property will go to someone of your choosing. Back-up fiduciaries (executors, trustees, agents under a power of attorney and so on) are also critical. If your primary choice can’t or won’t serve, someone unintended, or undesirable, may have to do it.

I find in initial consultations this is one of the biggest issues to discuss.  Clients consider their estate plan based upon present circumstances, but real life doesn’t always go the way we expect, so it is important to plan for contingencies.

Personal possessions, including family heirlooms. In the past, many families had items with great sentimental value, whether or not they have any financial value. Although this tends to be less common now, it is important to consider who would get those types of items.  It’s often best to have a personal property memorandum, which our firm routinely creates in our client’s estate plans.  This is a separate document providing details about what items you want to give to family and friends. These work differently in different states, so a local estate planning attorney will know the law for your state and can advise appropriately.  Even if this document is not legally binding, it gives your heirs clear instructions for what you want and may avoid family arguments.

I ask about important, sentimental possession in consultations, and clients often respond by saying these items aren’t financially valuable, as though that means they shouldn’t be consider.  But, these are the items that lead to fights in estates because they have an emotional impact on who receives them, and more significantly, who doesn’t.  I had an estate litigation case years ago that didn’t settle over a $600 wardrobe.  The financial value of planning was proven.

As a final thought, please don’t use the personal property memorandum to make any financial bequests or real estate gifts or use it as use it to try to amend the estate plan.  It never works well, and can break your estate plan.

Digital assets. Much of our lives is now online. However, many people have slowly incorporated digital assets into their estate plans. You’ll want to  consider all online accounts, including email, financial, social media, gaming, shopping, etc. In addition, your fiduciaries will need appropriate access to your phone, accounts and devices. The agent named by your Power of Attorney needs to be given authority to handle online accounts with a specific provision in these documents, which we do. Ensure the information, including the accounts, account number, username, password and other access information, is kept safe, and tell your fiduciaries where it can be found.

This is a growing need in today’s digital society.  So, you can learn more in this article:  https://galligan-law.com/does-your-estate-plan-include-digital-property/

Animals. Today’s pet is a family member but is often left unprotected when its owners die or become incapacitated. Pets cannot inherit property, but you can name a caretaker and set aside funds for maintenance. Many states now permit pet owners to have a pet trust, a legally enforceable trust so the trustee may pay the pet’s caregiver for your pet’s needs, including veterinarian care, training, boarding, food and whatever the pet needs. Creating a document providing details or speaking to the caretaker concerning the pet’s needs, health conditions, habits and quirks is advised. Make sure the person you are naming as a caretaker is able and willing to serve in this capacity, and as always, when naming a person for any role, have at least one backup person named.

Checking for these four key estate plan elements will help ensure your estate plan works as intended and to the benefit of your loved ones.

Reference: mondaq (March 16, 2023) “Four Provisions People Often Forget To Include In Their Estate Plan”

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