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It’s that time of year where we start preparing for our “kids” to head off to college (whether in-person or virtually). While the college landscape may be much different this year, one thing remains the same… Your college student is an adult! Along with this comes the reality that they are now in charge of handling their own affairs and making their own decisions.
No one expected the world to be as it is, and certainly we could be just be talking about taking precautions if our child is seriously affected by COVID. But what if your child is in a car accident through no fault of their own? Suffers a head injury playing intermural sports? Will you, simply as their parent, be able to step in and handle matters for them? Will you be able to access their bank account to pay their bills? File their tax return? Renew insurance policies? Initiate a lawsuit on their behalf? Unfortunately, the answer is no.
So, what is a Power of Attorney? A Power of Attorney is a document that allows another individual to act as your agent and conduct business on your behalf. There are generally two types of Powers of Attorney, a Financial Power of Attorney and Healthcare Power of Attorney. As the names indicate, a Financial Power of Attorney designates someone to make legal and financial decisions, where a Healthcare Power of Attorney designates someone to make your medical decisions.
So, what happens if you do not have a Power of Attorney? If you do not have a Power of Attorney and are incapacitated, your loved ones will need to file for guardianship to handle your legal and financial affairs. This process can be very emotional and costly, especially when you are dealing with heightened stress of the situation.
For healthcare decisions, Pennsylvania law does allow for another individual to serve in this capacity without any formal proceedings. Under this statute, the medical professionals will utilize the “reasonably available” individual in the following order of priority: 1) spouse (unless a divorce is pending), 2) adult child, 3) parent, 4) adult sibling, 5) adult grandchild, and lastly, 6) “an adult who has knowledge of the patient’s preferences and values and is able to assess how the patient would make health care decisions.” While it is beneficial to have guidance, the statue certainly leaves some gray area. The definition of “reasonably available” can certainly leave some questions. What happens if you are divorced and you and your former spouse cannot agree? What if your son arrives at the hospital before you do, and you will still be several hours away? What if your child has recently married and you disagree with their spouse’s decisions?
How do we easily avoid these issues? Have your child get a Power of Attorney! While we hope we are never in the position to need to use this document, it is always better to be prepared, just like purchasing insurance.
Adrianne Peters Sipes, Esq., Compass Estate Planning & Elder Law, focuses on elder law, estate planning, and closely related practice areas. To learn more about the firm, including our free, educational workshops, visit www.compassestateplanning.com. Or call (814)762-4193 to discuss your particular planning needs.