Estate Planning: Does Your 18-Year-Old Need It?

The quick answer to that question is “yes.” When your child turns 18 years of age, he is considered a legal adult. As such, he should have an estate plan. This includes a health proxy, power of attorney, and even a will or trust. While it is difficult for parents to think about this as being necessary, failure to take these measures can have unexpected or severe consequences. When your child reaches the age of maturity, HIPAA (Health Insurance Portability and Accountability Act) prevents even you, his parents, from obtaining confidential medical information. He needs to have communicated that he wishes for you to still be involved through HIPAA release documents. Additionally, if your child is unable to communicate his desires for his own medical care (or decisions regarding life support) you would need to be appointed as his health care proxy to make these decisions on his behalf. Otherwise, it could require years of litigation before you can make those types of decisions.

While it may be difficult to do, it is important that you discuss with your young adult their end-of-life wishes. You should know whether or not she wishes to be kept alive by heroic measures, even if it means she would not have a meaningful quality of life. As hard as it may be, you should even discuss with her other issues such as burial preferences, organ donations and cremation. Other important decisions, such as who may receive her important tangible property (her “stuff”) and her financial assets need to be worked out and documented as well.

It is important to note that not every person has the capacity to make decisions. In those cases you, as the parent, must now seek legal guardianship through the courts. You do not have the power to make medical and financial decisions on your child’s behalf without it. But even then, in a situation where your child still has the ability to state her preferences, goals, and objectives, and also supply input as to whom would make her decisions, her input should be considered, even if you are appointed as her guardian.

You should also be aware that often a parent or grandparent has given funds to a minor, and upon the age of 18, these funds are vested and are now owned by this young adult. In the unfortunate event that your child should predecease you, these assets may have to be probated and will pass to that person’s heirs-at-law. Assuming that they don’t have a spouse or child, in New York the next in line are his parents. In many situations, you have set up an estate plan for yourselves divesting assets in order to reduce your estate. This is typically done for estate tax or for asset protection purposes. The unplanned receipt of assets from your child could greatly impact your plan. A straightforward will, directing that the assets be left to individuals other than you, possibly siblings, or a charity, would alleviate this unintended problem.

So, whether it’s to make sure their wishes are being carried out or to further accomplish your planning goals, it may become important for your child to create an estate plan. This usually would simply be a straightforward will, power of attorney, health care proxy and living will. Of course, if your young adult has already accumulated some assets, his or her estate plan may be more complex and require the use of trusts. A qualified estate planning attorney would be able to help create the best plan of action.