Ah, June and adulthood events! In addition to weddings, June is known for being the month of high school graduations. Only this year, high school graduations have been…different. Different because of the coronavirus that has disrupted life in much of 2020. No families crowded into a local arena for the ceremony, no seniors traipsing across the stage to collect their diplomas, no large groups going to dinner afterwards, and no (or fewer) beach week trips.
Although the virus has disrupted the ceremonial aspects of high school graduation, it cannot disrupt the milestones and rite of passage that graduation represents. The virus does not change this essential truism: Upon turning 18 years old, the student is a legal adult who is considered competent to make decisions on his or her own and without the permission or necessary involvement of parents or other adults.
In practical terms, this means that young adults can sign contracts, get married, purchase a house, write a Will, withdraw all of the money held for them in a standard UTMA (Uniform Transfers to Minors Act) account, and make all their own medical decisions. Legal adulthood means that parents are not the automatic substitute decision-makers if the young adult becomes severely injured or ill and is unable to make or articulate his or her own medical or financial decisions. If the young adult receives special education services, parents can no longer participate in the student’s IEP meetings without the student’s consent.
Who makes decisions on behalf of a young adult who is incapable of making his or her own?
The answer is the same as for all adults, no matter their age: the agent under the Durable Power of Attorney (POA) makes the financial management decisions, and the agent under the Advance Medical Directive (AMD) makes the medical decisions.
In the absence of a POA, the Court will need to appoint a conservator to manage the financial affairs of the individual who is incapacitated and cannot manage them herself.
In the absence of an AMD, Virginia law allows, but does not require, an attending physician to obtain medical consent from a prioritized list of individuals, including parents, adult children, adult siblings, etc. Generally, in the absence of an AMD and where there will be ongoing medical decision-making, the Court will need to appoint a guardian to make the personal care, rehabilitation, and medical care decisions for the patient who is incapacitated and cannot provide informed consent himself.
When a conservator or guardian is appointed, the incapacitated person loses certain civil rights, which may be restored in a later court proceeding if the incapacitated individual regains the ability to make his or her own decisions. The guardianship and/or conservatorship petitioning process takes several months and costs several thousand dollars; the process of a young adult nominating an agent under a POA and AMD takes much less time and is considerably less expensive.
What actions should parents of a young adult, or soon to enter legal adulthood, take?
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If your son or daughter receives special education services and is not able to understand a POA or AMD, then when your young adult is 17 ½ years old you should work with an attorney to file a petition to be appointed your young adult’s guardian (and conservator, if your child has money, such as savings bonds, in his or her name that you will need to manage), with the hearing held as close to your child’s 18th birthday as possible. Promise Law helps lots of families in this situation.
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If your son or daughter is 18 and is competent to understand a POA or AMD, then you can encourage your child to create these legal documents, and perhaps offer to pay for them as a graduation present. Note that even if the parent pays for these services, the attorney’s client is the child and the child will make all of the decisions about whom to name as agent and what powers the agent should have.
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If your young adult child does not have a POA or AMD and becomes seriously ill or injured such that she cannot make her own decisions, then you should consult with Promise Law as soon as possible to get the petitioning process started to nominate yourself or another adult to serve as your child’s guardian or conservator until they regain the capacity to make their own medical and financial decisions.
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If you do not have a POA or AMD yourself, or if yours is several years old, then we recommend you register for one of our free educational workshops on the “7 Hazards to Your Estate Plan” so that you can set a good example and create, review, and/or update your own estate plan to reflect your current financial and personal circumstances.
You can register for a workshop by clicking here or call us at (757) 690-2470.
