When a child graduates high school and heads for college, a great chapter of life is over and a new one is beginning. Both parent and child work to adapt to a new reality. Even exceptional children may suddenly need to develop new skill-sets: making a new peer group for the first time in years, organizing their daily life, adapting to a parent-free environment, and learning how to navigate classes and university registration.
Books have been filled with discussions of these problems. They’re faced by almost every new college student, and it’s important for a student to learn how to deal with them—both from older students and, if possible, from an older mentor or two who can help put their problems in perspective with the kind of wisdom that never translates well into a LinkedIn Article.
But as young adults, these students are also facing a new, more subtle kind of challenge: the law of adulthood.
The Law of Adulthood
The Law of Adulthood is not a formal area of law anyone learns about in law school. Instead, it’s the collection of thousands of issues that arise in law because kids are different, younger, less mature, and should have the opportunity to learn from their mistakes—while other people, including parents and teachers and mentors, still make some decisions for them.
So contracts with children are voidable, with rare exceptions. And statutes of limitations, tort law, criminal law, medical law, financial law, consent law, driving law, and laws governing thousands of small parts of their lives suddenly change when they hit 18.
Many young adults also leave their home state when they go away to college, meaning that the laws change even more. Even a change from one city to another can change the law—a child who learns to carry a knife as a boy scout in Eastern Washington may find that the knife he carries is prohibited by Seattle’s knife law.
And while we cannot prepare our children for all the changes in the laws that will affect them, there are a few things we can help with. Most obviously, we can talk to them about the legal planning that adults should do: planning that our children should think about when they turn 18.
In other words, adult children should think about accident preparation. While “safety first” is a good rule for many areas of life, having a plan for when safety fails you is one of the most important parts of being an adult. You never hear children talking about insurance policies and you never should have to, but adults know that accidents happen. Adults know that 30% of adults will face significant disability at some point in their working life, and while they hope never to face it themselves, they prepare for the moment when the cliff gives way.
A normal part of turning 18 is opening a bank account: an account that can receive earned income from a college student’s work study hours or their off-campus job. An 18-year-old might also open a credit card account. But these accounts and other accounts and contracts made with an 18-year-old aren’t based on the parent.
The Law of Adulthood means that contracts are no longer voidable: contracts are adult obligations. So if the student has a problem, if they are unreachable on a foreign exchange trip or if they have a serious accident and are unable to make decisions, a parent can’t make decisions for them.
There are some exceptions: parents may be able to make an emergency medical decision as next of kin under state law, for example. But overall, an 18-year-old has the autonomy of an adult. He gets to decide who can make decisions on his behalf, and banks and credit card companies won’t listen to the parents.
A family may be forced to establish a guardianship and have a child declared incompetent before it can make even simple decisions—and worse, people may disagree about who should be responsible for making those decisions, or lack knowledge about what the child would want. A court battle may even be necessary. This adds to the unnecessary drama, difficulty, and cost of managing an already terrible situation.
As a result, adult children should have Powers of Attorney.
Sometimes adults don’t have powers of attorney, the powers of attorney are defective, or it becomes necessary to name a guardian anyway. In case this ever happens, adults should nominate a guardian for themselves.
An adult child has all the legal autonomy of an adult. Students face accidents in college, and it is not unusual for a few students to be walking around on crutches—sometimes from sports injuries, but also from car accidents and car-pedestrian accidents. Sometimes more severe accidents happen—a man I knew was standing nearby when a vehicle hit a dumpster, and the dumpster pinned him against a wall, and he could never walk without walking aides again.
He went on to do well for himself professionally, like many impressive people who overcome such obstacles—but sometimes an injury is such that the person can’t make their own decisions any more. And while a Power of Attorney is often enough, sometimes the person needs a guardian.
Adult Children should make the decision about who they trust to help them if that happens. You hope they won’t need a guardianship ever—it’s a last resort—but it’s even worse if you wind up fighting over who should be guardian or the adult child winds up with a guardian they don’t want.
Honoring a Child’s Wishes
Advance Health Directives specify how an adult would like medical treatment to be handled if they can’t make decisions for yourself. While these directives can be used for almost any medical instructions, their most important role for most people is that they let family members know what artificial life-sustaining measures an adult would like, and when they would like those measures stopped.
For family members who have to make those terrible decisions, knowing what the person they are caring for wanted makes all the difference in the world.
Mental Health Directives, while newer, can be made to specify how an adult would like decisions about their psychological care to be made. And as we all know, many young people face in their incorrigible youth great passions and ridiculous (but severe) drama, the bite of ennui and the tragedies of young love, serious social challenges and deep depression, and many other mental health challenges. Some have difficult years, or even a difficult four years, and sometimes parents are the last to know.
We hope to never need Advance Directives or Mental Health Directives, but by the time we need them, it’s too late to make them.
Few laws are more badly implemented in practice than the Health Insurance Portability and Accountability Act of 1996. Almost every patient signs HIPAA forms to get treatment, many of which are badly drafted and are misunderstood even by people who handle patient information—if they have been read in the first place.
But the law is still in effect, and medical professionals do understand they need to get HIPAA releases before releasing medical information to people. Parents are not naturally immune from federal privacy laws, nor would children or even parents want them to be.
Adult children need to be able to ask medical professionals embarrassing questions without fear that parents they respect will hear about them. The alternative is relying on the counsel of friends, who may be helpful or supportive but are still 18-year-olds in all their wisdom.
Accordingly, comprehensive disaster preparation for adult children should include an authorization form for the release of HIPAA information. This is most important when powers of attorney are “springing” and rely on health information, but can also be useful when trying to get medical information for a wide variety of reasons.
Although less common, an explicit provision in powers of attorney or a separate document authorizing the release of educational information under FERPA (the Family Educational Rights and Privacy Act) to someone other than the student may also be useful.
Selecting People the Child Trusts
We are not our children, and we can’t make their decisions for them. Frequently, parents will encourage their children to make emergency documents or will offer to pay for them—but parents can’t decide who will be on the paper.
Ultimately the adult child needs to sign the papers, the adult child needs to select the people they trust, and the adult child is no longer a child at all.
About Tom White
Tom White writes “A Little Deathy.” He is Attorney/Owner of King County Business Law in Seattle, Washington, and author of UN-acclaimed anti-human-trafficking novel River of Innocents. He is an Eagle Scout and recipient of the Order of the Arrow’s Vigil Honor, and he volunteers at the Housing Justice Project. A graduate of Williams College and Georgetown Law, he can occasionally be spotted in the wild at Seattle coffee shops.
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