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Minors, Adults and Capacity

On November 6 my oldest nephew turned 18 years old. By law he is officially an adult, able to vote and to open an IRA.

From the standpoint of basic rights, there is very little difference between him and me (except for a curfew). This includes the right to sign contracts, to manage our own accounts, to choose our friends and partners, to conduct business, and to essentially perform every other function that the law allows.

Under the Health Insurance Portability and Accountability Act (HIPAA), it also gives each of us complete privacy in and to our medical information. A parent has the legal right and authority to perform most of these duties for their minor children, as well as to have access to their medical information and to make all health-related decisions for them.

However, the minute that the child turns 18, that legal authority is stripped from the parent, and by law all of these rights and authority rest entirely in the “adult.”  And if that adult suddenly loses the capacity to make logical decisions, then someone must be appointed to make those decisions for them.

Conservatorship

The default process in California is called conservatorship. It requires someone to petition the court to be appointed as a “conservator” to make these personal and financial decisions. However, like all court processes, conservatorship is expensive and time-consuming. It might take 6 months or longer to get a conservator appointed, which can seriously jeopardize the well-being of the disabled adult in the meantime.

Fortunately, California law offers an easy alternative by allowing a competent adult to sign documents prior to incapacity voluntarily appointing trusted loved ones to automatically step in if needed without court approval.

These documents are called the durable power of attorney for asset management and the advance health care directive.

Durable Power of Attorney

The durable power of attorney for asset management can become effective immediately upon signing, or only once the person becomes incapacitated and needs the assistance. It designates someone to immediately step in and pay the financial affairs of the disabled adult. This includes managing money and real property, filing tax returns and making tax elections, signing contracts, and basically performing any legal function required. The power of attorney can also be limited to just a select few things (e.g. manage a certain account, sell a certain house, or file taxes).

Advance Health Directive

The advance health care directive allows someone else immediate access to medical information and the ability to make medical and personal care decisions if an adult suddenly is unable to make those decisions. If there is an accident, or something goes wrong in a surgery, or a sudden illness comes on, the advance health care directive will allow a loved one to immediately make the necessary decisions to ensure proper care.

Every adult should have these documents already executed.

And as your children turn 18 and head off to college, remember that they are now adults. If you want to continue to have the legal authority to make these decisions for them, they will need to agree, and will also need to sign a durable power of attorney and an advance health directive.
If you have any questions with this or want to get these documents done for your kids, please give us a call at your convenience.