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Why Your Children Should Sign Advance Directives When They Become Adults

Many individuals first consider consulting an estate planning attorney after they have children or accumulate wealth, and wish to make a will.  Typically, an attorney’s will package includes Advance Directives, which are among the most important estate planning documents.  Advance Directives allow for the handling of an individual’s financial affairs and medical decisions in the event the individual is unable to do so, and should be considered by all persons once they become adults. 

Although it may be difficult for parents to think of their 18-year-old sons or daughters as adults – especially when the parents are trying to rouse them from bed to attend high school classes, or paying for their college education and all the extras that such an education entails -- those young people are adults in the eyes of the law.  If a young adult should become incapacitated as a result of injury or illness, the parent has no legal authority to make medical decisions for the adult child, or to handle the child’s financial affairs.   The parent’s only recourse is to petition the Probate Division of the Circuit Court to be appointed Guardian of the Person or Guardian of the Estate, or both.   A Guardian of the Person would make decisions about the Ward’s medical treatment, schooling, and living situation.  A Guardian of the Estate would handle the Ward’s financial affairs, including managing the Ward’s assets, entering into contracts on behalf of the Ward, and perhaps bringing a lawsuit to recover for the Ward’s injuries.

The Guardianship process is focused on protecting the person who is under Guardianship, who is known as the Ward.  When a petition for Guardianship is filed, the Court must appoint an attorney to represent the Ward.   If a Guardian of the Person is appointed, the Guardian must file Annual Reports informing the Court of the Ward’s physical condition, and any changes in the Ward’s living arrangements over the preceding year.  If a Guardian of the Estate is appointed, the Guardian must file a corporate surety bond and Annual Accounts that report every financial transaction that occurred during the preceding year.

Everyone over the age of 18  should execute Durable Powers of Attorney to avoid the time, expense, and intrusion of a Guardianship.  Although some young adults are ready to sign Living Wills, which are documents that state that the Principal does not wish to be kept alive by artificial means if near death or permanently unconscious, most are not ready to make that type of decision.  They do not have to do so.  If the young adult executes a Durable Power of Attorney for Health Care and authorizes his or her agent to make those terminal care decisions, the agent will be able to decide what is best if and when the time comes.  

If you have children or grandchildren who have reached the age of 18 and who have not executed Durable Powers of Attorney, you should encourage them to do so.  A young adult who executes Durable Powers of Attorney becomes the client of the attorney.  His or her communications with the attorney are subject to attorney-client privilege, and cannot be shared by the attorney with any third party, including the child’s parents.  Of course, as is the case with any other client, the young adult is free to share any information that he or she wishes to disclose.

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