Got an empty nest? Feather it with these documents

As summer wraps up and the kids head back to school or off to start their adult lives, many parents may be facing the proverbial “empty nest.”

For some, this is an exciting time. That bedroom now can be a library, an actual guest room or even a craft room!

For others, it’s a sad time. Your “babies” are grown, and your house feels empty. Or maybe it’s an ambivalent mix of both emotions.

Either way, have no fear; your work is not done. Now, you’ve got some legal documents to consider.

When your child turns 18

When your child turns 18, they are, for better or for worse, a legal adult. That means you no longer have the right to make decisions for them, nor can you obtain information about them from third parties (schools, hospitals, banks).

This can come as a shock to parents, especially in an emergency. There is a way to avoid this outcome by putting specific documents in place.

Healthcare directives

First, have your adult children fill out and execute an advance health care directive (also known as a health care power of attorney) and HIPAA form.

The AHCD allows someone to designate the person who will make healthcare decisions for them in the event they are unable to do so. They can also list an alternate in case their first choice is unavailable. The document also provides some guidance for the decisions they’d like made.

If your child lives in California, use the state’s statutory form (last updated in 2019). The form needs either two witnesses who are not named in the document (and at least one of whom is not related) or a notary. If your child lives in another state (temporarily — while attending school, for example — or permanently), consider using that state’s form.

A HIPAA form allows your adult child to designate third parties with whom medical personnel can communicate. Your adult child can list parents, friends, siblings, or others. Note that the authorization is for information and communication only—it does not give any decision-making powers (that’s what the healthcare directive is for). If your child is hospitalized in an emergency, you’ll be able to get the information you need with a HIPAA form.

Power of attorney

In addition to the health care directive, consider having your adult child sign a durable power of attorney authorizing you to make decisions and act on their behalf in the event of their incapacity or by their choice.

With a properly executed and activated power of attorney, you’ll be able to access bank accounts, pay bills, and handle insurance claims and legal matters, among other things on behalf of your adult child. The power of attorney does not take any rights away from your adult child; it merely allows you to act on their behalf as well. If your adult child travels out of the country for any extended time, this may be particularly useful.

Review documents

When children grow up and leave the home, it’s a good idea for you to review your own estate planning documents.

We often see clients who dutifully executed wills, a trust, powers of attorney, health care directives and nomination of guardians for minor children when their children were young and then never looked at those documents again. Estate planning documents are not “one and done.”

They need to be reviewed as laws and life changes. Children growing up and leaving the nest is one of those changes that should motivate you to review your documents.

Did you name other people (your own parents, perhaps) as successor trustees of your trust or power of attorney for you? Does that still make sense? Are your own children now old enough (and responsible enough!) to name instead?

What does your trust provide for your children?

You may have implemented a trust when your children were young, and your net worth was less. At the time, it may have made sense to provide that in the event of your death, the child or children get their inheritance outright when they’re eighteen or twenty-one.

Now that the kids are that age and your net worth is larger, does this still make sense (the answer is likely no!)? Perhaps the reverse is true—you left the inheritance in trust until the child turned thirty-five or even forty. Now that you see how your child turned out, does this still make sense? Have you loaned one child money that you expect to be paid back? If so, does your estate plan deal with that?

If you haven’t updated your own estate planning documents since your children were young, let the empty nest serve as a reminder that time has passed, and things have changed. While you’re dusting out their bedroom, dust off those legal documents as well.

The baby birds may have flown the coop, but you’ve still got to feather their nest—this time, it’s with legal documents. Every adult—kids over eighteen, mom, and dad—should have an Advance Health Care Directive, HIPAA form, and durable power of attorney in place.

An adult with assets of any kind should have a will and likely a trust. Those documents should all be reviewed and updated on a regular basis–and hey, now you’ve got that empty room to use as an office in which you can review and organize paperwork.

Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild.”  Reach her via email at [email protected]