My high school senior turned 18 last month. A number of parents from his peer group have asked me whether our kids should give us “powers of attorney” when they turn 18 or before they go off to college. The short answer is, yes, this is a very good idea. Having your adult child give you power of attorney now, while they are healthy and able to make legal decisions, is an appropriate way to be prepared for circumstances when they are not.
For example, if your child is in an accident that renders them unconscious or becomes incapacitated for some other reason, you may need the legal ability to make medical or financial decisions while they are unable to do so. Additionally, because your child is now an adult, a healthcare provider likely would deny you access to their medical information under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
For those who don’t know, a power of attorney is given by executing a legal document in which the “principal” — in this case, your newly-minted adult — designates one or more persons to act as their “agent” to make certain decisions on their behalf in circumstances when they are unable to make those decisions for themselves. Having power of attorney does not allow the parent as agent to substitute their own judgment for that of the principal; your “child” now is an adult and in most cases can make their own legally-binding decisions whether you agree with them or not. Rather, under the Illinois Power of Attorney Law, an agent who accepts the delegated responsibility “must act in accordance with the principal’s expectations to the extent actually known to the agent and otherwise in the principal’s best interests.”
In order to obtain this authority, the “short forms” that your adult child should prepare and sign are:
These Illinois “short forms” contain some explanation and instructions, but if you have any questions at all about how to fill them out or the implications of the choices you must make in doing so, you should engage a lawyer to help. One or more of these forms may require that a witness and a notary be present at the time of execution to legally authenticate the document. Other states have their own laws and forms that may differ from Illinois, and you should consult a licensed attorney in those states for advice.
Note, a principal filling out these statutorily-permitted Illinois “short forms” is not permitted to name both parents as co-agents to have their power of attorney. A principal who wants to name both parents as co-agents will need to have a different form drafted by an attorney and consider the provisions of 755 ILCS 45/2-10.5 (the section of the Illinois Power of Attorney Act dealing with co-agents). Remember, however, the agent is only likely to be exercising these “powers” if something happens where the principal cannot make their own decisions. So if the principal is confident that their parents understand their expectations and best interests, and can and will make these decisions in concert, co-agency probably is not required.
This article points out a few additional worthy considerations:
Update these forms yearly. Be prepared to have your adult child re-sign and re-execute these documents every couple of years. This is especially critical for Powers of Attorney. The institutions where you would be most likely to use these documents – such as hospitals and banks – might refuse to honor them if they perceive them to be outdated.
These documents are only as good as the institutions that will accept them. Making sure these documents are properly executed is half the battle; whether they will be accepted by the involved institutions is the other half of the battle—one you don’t have complete control over.
These documents can be revoked at any time by your adult child either orally or in writing. Your adult child retains control of the ongoing validity of these documents; therefore, your best bet is to maintain a trusting relationship with your child so he/she sees the benefit of giving you the access and control these documents afford.
For adult children attending college at an out-of-state university, parents will want to execute separate documents in both the student’s home state and college state. If your daughter is from Denver but is attending college in Los Angeles, you’ll want one set of documents prepared governed by Colorado law and a second set of documents prepared governed by California law.
Having the written authority to act on your adult child’s behalf is a prudent “just-in-case” measure to have in place as they become more independent and in many cases move away from home. While we all hope to never need to use these powers, it’s better to have obtained them in advance for a time when our adult children are unable to communicate their consent or make their own important financial or medical decisions.