Is it necessary for your children to have a Health Care Power of Attorney document?
The short answer is – maybe.
Minor Children and Health Care Power of Attorney
Under Illinois law, a person under age 18, a minor, cannot consent to medical treatment, and a parent or guardian must consent to the treatment of a minor.
A few exceptions to the general rule include; an emancipated minor, a minor who is married or pregnant, sexual assault victims, and medical emergencies.
However, all minors who fall under an exception are equally vulnerable as adults when they cannot make health care decisions due to an accident, injury, or medical condition. These minors must have a signed Health Care Power of Attorney document directing someone or a successor agent to make all health care decisions for them, including life support decisions.
A parent or guardian will make those decisions for minors who do not fall under an exception to the law.
What about your 18-year-old child?
School-Age Children Age 18 and Over and Health Care Power of Attorney
It is hard enough to help pack up your child’s belongings and watch them head off to college and a life of independence for the first time and maybe for all time in the future.
What if something happens to your age 18+ child at school or an adult child still living at home?
I will never forget my conversation with a client who brought his 19-year-old son with him for his Living Trust signing so that his son could obtain a Health Care Power of Attorney document.
My client told me that his 20-year-old son was a freshman at DePaul Unversity, and four weeks before our meeting, his son was sitting on a first-floor porch railing and fell backward. He hit his head and suffered a traumatic brain injury. His son had been on life support ever since.
As my client shared this heartbreaking story, he explained that his son and he had a conversation a few months ago. His son was adamant that if he were ever in a hospital and on life support, he would not want to live that way and would not want to continue living with no quality of life. That’s a heavy conversation to have with your kid. However, it is an important one to have with every child.
His son lingered on life support against his wishes because neither his father nor anyone else could make those decisions on his behalf as he was not a minor and he did not have a signed Health Care Power of Attorney. My client brought his 19-year-old to get his Health Care Power of Attorney. And his son insisted on it.
All Your Adult Children and Health Care POA
I have frequently written about how most people equate estate planning with retirement. The above story and the uncertainties we face in life every day remind us that anything can happen long before retirement.
In nearly every instance, for clients who finally make it to the office to sign their Living Trust estate plan, hardly any of their adult children – many with children of their own – have a Living Trust estate plan or any formal estate plan.
I don’t have to remind anyone what a disaster it is when a young couple dies, leaving children and guardianship issues to the court system and warring relatives. All of a sudden, everyone has the best solution for the custody of the kids.
When the judge determines custody, the expense and aggravation of Probate are far from over. All of the parent’s savings, investments, and life insurance proceeds are then held under the jurisdiction of Probate Court until each child reaches 18, on which date the 18-year-old receives the entire estate. It is safe to say no parent or grandparent wants this outcome.
Living Trusts and Health Care POA
At the end of your life or incapacitation, they risk Probate if you have property, investments, or bank accounts in your name.
- A Will must be Probated. The rule is no one can legally sign your name. Therefore, all assets in your name are subject to the Probate process, which averages 18 months and is costly.
- A Living Trust completely avoids Probate.
- Your financial accounts, life insurance policies, and deferred compensation accounts can name your Living Trust as beneficiary, subject to essential tax considerations.
- A Living Trust estate plan includes both Health Care and Financial Power of Attorney documents. It also consists of a Last Will and Testament. A Will is necessary for guardianship of minor children. It also transfers assets in your name out of Probate.
- A Living Trust contains a No Contest provision and beneficiary Asset Protection clauses.
Tom Tuohy is the founder of Tuohy Law Offices.
This blog entry is created for information purposes. Therefore, it is not legal advice. Please do not use this blog as legal advice, which turns on specific facts, as well as laws in specific jurisdictions. No reader of this blog should act or refrain from acting based on any information included in or accessible through this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the reader’s state, country or other appropriate licensing jurisdiction.