So little Andrew AKA “Bookybear” is almost off to college. You’re so proud! Before he leaves, you’ll make sure your “Bookybear” is all set. You’re still very concerned about his in/ability to do laundry, but that can’t go on the list… or could it!?! You both came up with essentials to put on his off to college list. Yours are easily distinguished from Master Andrew’s. On the list, you have:
- A more mature wardrobe
- Smell goods for the ladies
- Canned Food & Water
- Five new pairs of the latest shoes
- Three sets of XL Twin Sheets
- Mac Book
- Peanut butter….
Strangely enough, you don’t have me on the list! Well, not me per se, but an Estate Planning Attorney. I know. That’s your baby. First of all, nothing is going to happen to your baby. I’m a terrible person for even bringing up this topic at a joyous time such as this. You were looking forward to your grocery bill going down, and he was obviously trying to impress the ladies… My apologies. Now, back to reality. Things do happen. Sadly, parents do bury their children. It’s not the correct order, but I’m an advocate for planning for life. This is life! Once “Bookybear” turned 18, it no longer matters that you still call him “Bookybear”, or that he is not married; you’re not entitled to jack squat! You’re not entitled to medical or financial records. This may be a shocker, even more so if you became a Lyft driver to put “Bookybear” through college…you’re not entitled to educational records. So, in case I haven’t been crystal clear, I’ll recap. You could get lucky, or you may have found a workaround, but…your grown baby typically has to consent to you having access or taking action on his behalf. If he is not able to consent, what do you think could happen?
Say “Bookybear” starts messing up in school…
You would be livid! No doubt in anyone’s mind, you would go straight to that school and demand answers! Well wait…not so fast. Mr. “Bookybear” to you…He is an adult. There’s a law for that. Family Educational Rights and Privacy Act Regulations (FERPA) 34 CFR Part 99 to be exact. This Federal law is designed to protect the privacy students’ education records. The law applies to all schools that receive funds from the U.S. Department of Education which includes colleges and universities.
Under FERPA, parents or eligible students are entitled to inspect and review education records maintained by schools. This Federal law gives parents certain rights with respect to their children’s records while they are minors, but these rights transfer to the student he reaches the age of 18. If you want to get technical, an education record could be anything under the sun. It could be a file, document, record or other material that has information specific to the student. In previously used words, you’re not entitled to jack squat! Unless…you have written consent.
God forbid, say “Bookybear” gets into an accident …
Sadly, he becomes disabled and unable to continue his education. There is absolutely no silver lining here, because that would be tragic. Under those circumstances, a person/child may be eligible for a total and permanent disability (TPD) discharge of certain student loans through The U.S. Department of Education if certain criteria are met. To be considered for a TDP, the borrower must submit an application for discharge, and provide information to show that he or she is totally and permanently disabled. Assuming he has capacity to sign such a document, you’re in the clear. But if he doesn’t…you can’t “submit an application” without jumping through a few more hoops. In this case, unless a child/borrower is able to sign an Applicant Representative Designation form, a parent/representative may only sign the form on the child/borrower’s behalf if he or she has a power of attorney document.
I am obviously making light of a very serious situation, but this is no laughing matter. I’m a parent myself. Although neither of my little “Bookybears” are remotely close to college…thank heavens, the scenarios I described are the absolute worst. Terrifying for a parent. Frankly, the scenarios are unlikely. However, when your children are not near you, when they are transitioning into different phases of life that will without a doubt be outside of your immediate control, when there’s some distance between you, you want to make sure they are all set. One common misconception is that young adults do not need Estate Planning Documents such as Powers of Attorney unless they are already disabled, have dependents, or assets. However, once a child reaches the age of 18, a third party, including a parent cannot act on his behalf without proper authorization. Sorry moms. The birth certificate won’t do, your c-section scar is irrelevant, and your stretchmarks… well there are twinkies, but I digress. Bump the canned soup, you need some estate planning documents to allow you access & to help your transitioning baby “Bookybear”.
- Powers of Attorney & Advance Medical Directives – Several documents fall under this umbrella, including the Non-Durable Power of Attorney, Durable Power of Attorney, Special or Limited Power of Attorney, Health Care Power of Attorney, Living Will, Durable Power of Attorney for Health Care, “Do Not Resuscitate” Orders, Physician Orders for Life-Sustaining Treatment, etc. Whatever you call it, health and financial powers of attorney documents are important, even for a young adult. That is, if you care to ensure his wishes are protected if he becomes incapacitated and you are not around to harass the hospital staff. Furthermore, health and financial powers of attorney allow a third-party or parent to manage health, financial and related affairs, including a TPD discharge request, medical, or school records. If your child is unable to consent to you managing or directing others to manage his affairs, having the right documents will make it easier for you to take care of things without the costly and often time-consuming guardianship process.
- Last Will & Testament – In most cases, an 18 yrs. old may not need a Will. I’d gladly draft one, but if their only assets are clothes and PlayStation games, unless they have an amazing collection, it’s not absolutely necessary. If “Bookybear” has a “Bookybear Jr.” or assets that could be subject to a Probate proceeding, a Will may be necessary to ensure effective asset distribution and to provide a road-map for his loved ones
I know you thought the laundry thing was going to be your biggest concern… you can buy more clothes, or “Bookybear” can learn to love all pink everything. As it relates to legal and healthcare decisions, it’s always better to be proactive than reactive. So, when your “Bookybear” goes off to college don’t forget to put [a] TAG on him!