Back to School – Do College Kids Need Estate Plans?

It’s that time of year again.  Parents are getting their little ones ready for school, and this year details concerning school are still very much in the air.  Will classes be remote again?  Will kids and teachers be required to wear masks?  We don’t have all the answers at Wakefield Law, but a question we get frequently is whether college-aged children need documents when they are going back to school.  To answer this question, we have to go into what basic estate planning documents are, and whether they are applicable to a healthy young adult.

The Basic Estate Plan can be broken down into three basic documents.  The Last Will and Testament, the Power of Attorney, and the Advance Medical Directive.  Depending on a client’s unique financial and familial situation, there can be all sorts of other documents we will also draft, even when preparing a relatively straight-forward estate plan.   However, for the purpose of this article, we will focus just on the big three.

Last Will & Testament:
The Last Will & Testament (often just called a Will) is a document wherein first, the drafter of the will, or “testator,” makes elections regarding who will handle the probate process after they pass away.  This person is the one who will go to court and facilitate the step-by-step proceeding to transfer assets from the person who passed away, or “decedent,” to their beneficiaries.  Guardianship for minor children is most often dealt with in the Will, as well. 

This document is often the least likely deemed to be critical for a college-aged child.  First, the assets of a college-aged child are often, but not always, relatively small.  Second, as long as minor children are not involved, while devastating, the probate process would be quite streamlined for an unmarried young adult. 

Power of Attorney:

The Power of Attorney is a document that designates an Agent, or Attorney-in-Fact, who will look out for the drafter’s financial best interests in the event that the drafter cannot make decisions for themselves or is deemed to be incompetent by a physician or court.  There can be other structures for a Power of Attorney, but for a college-aged child, in the eyes of the law, they are old enough to be responsible for themselves financially.  Whether or not an 18- or 19-year-old is old enough to enter into leases, contracts, and engage with financial institutions in their parents’ eyes, they have the capacity to do so from a court’s perspective. 

The Power of Attorney, when effectively drafted and executed, appoints a trusted person who will step in if the college-aged child is unable, or even unwilling, to make decisions for themselves.  The document does not always need to be drafted to be effective only in the event of incapacity.  There are other forms it can take that may fit your family’s situation.

Advance Medical Directive:

The Advance Medical Directive (often called a “Living Will”) is the other side of the coin from the Power of Attorney.  It appoints an agent who will make medical decisions for you in the event that you cannot make them for yourself.  Juxtaposed to the Power of Attorney, incapacity is required in all scenarios for an Advance Medical Directive to become effective.  Making sure this document is in place with the right agents appointed will ensure that if a disaster takes place, someone close to you who understands your personal life values and viewpoint will be making your medical decisions in line with those values and viewpoint. 

Why Would I Need This for my College-Aged Child?

This is the big question.  As all parents like to think, we know what’s best for our children.  Letting go and sending our loved ones to school was hard enough before a global pandemic that just does not seem to want to come to a close increased all of our worries.  So, why would a college-aged child, who is an adult in the eyes of the law and their university, need a Power of Attorney or Advance Medical Directive? 

The answer here requires that we imagine something bad happening, often a prerequisite for estate planning hypotheticals.  If a college-aged individual is injured, hospitalized, or becomes incapacitated for any medical reason, that child’s parent MAY be contacted.  Because they are deemed to be adults, there are horror stories easily found online showing that parents were completely excluded from medical decisions and updates when their child was injured.  If the hospital is a university-based facility, perhaps the likelihood of a parent being notified and invited to be a part of the decision-making process is higher, but it is impossible to know. 

Ensuring that your child has a Power of Attorney and Advance Medical Directive in place, and on file with the university, is one of the best ways you can make certain that you will be involved if something happens to your child.  Also, communicating with your child about how important these documents are is a necessity.  The documents are only as effective as the person presenting them to the medical facility.  After they are drafted, give your child’s roommates copies so they can advocate for your child in the event of an accident. 

While it may seem strange to engage in estate planning for your young and healthy college-aged children, hopefully this article sheds some light on the justification and rationale for targeted planning to make sure the right people are stepping up to make the best decisions in the event of an emergency or disaster.  Give us a call at Wakefield Law to see if these documents are right for you! 703-771-9740.