Health Care Power of Attorney and Living Wills for College Students

By Erin Anderson, Senior Trust Counsel, and Jennifer Kawicki, Trust Counsel
July 15, 2020

For most parents, it’s natural to want to protect their offspring as they grow and mature—and when their children are ready to head off to college, it’s natural for parents to want that same protection to tag along. However, when your
child reaches that milestone 18th birthday (in a few states it’s older) he or she is legally an adult allowed to make and
face the consequences of their own decisions—including those regarding health matters.

Mother and Daughter
Without your child’s written permission, you can no longer access medical records or make medical decisions on your
child’s behalf unless certain legal documents are put in place—even in the midst of this pandemic, even if your student
is covered under your health insurance, and even if you’re footing all the bills.

While discussing a young adult’s personal health issues sometimes can be challenging and embarrassing, it’s worth
making every effort to have the conversation. Before your student heads off to college, these documents should be in
place to keep you involved in case your child has a medical emergency.

A Durable Health Care Power of Attorney is as applicable and beneficial for young adults as it is for older individuals.
Your adult child living away from home will likely want to appoint you as an “agent”, under a health care power of
attorney instrument, so you would have authority to receive medical information and make medical decisions if your
adult child becomes incapacitated as a result of an accident or medical emergency. Make sure the health care power of
attorney includes Health Insurance Portability and Accountability Act (HIPAA) provisions which authorizes medical care providers to disclose your child’s protected health information to their agent. Without the HIPAA authorization, health care providers are legally prohibited from sharing information, even with family members. Once the document is completed, make sure to provide a signed copy to your family’s primary health care provider, put one copy in a safety deposit box (or a safe alternative), and place a copy in the glove compartment of your child’s car. Additionally, if possible, it would be good to include the agent’s phone number in the document or attach separately so the agent can be easily reached in the event of an emergency. While these contact numbers may also be saved in your child’s phone, accessing them may not be possible when needed.

A Living Will, sometimes also referred to as a Health Care Directive, allows your child to specify his or her wishes
regarding end-of-life care. This may be a separate document, but in many instances, it may also be part of the Durable
Power of Attorney for Healthcare. A Living Will specifies the medical treatments your child would and would not want
to be used to keep them alive, as well as your child’s preferences regarding organ donations. The decisions your child makes in this document can provide guidance to the agent designated in the Health Care Power of Attorney and to the health care provider in the case of an emergency or serious health condition.

With both documents, it is best to consult with an experienced attorney-at-law and to have the attorney draft the documents. However, if time does not permit, these documents are generally available as a fillable form on your
state bar association website. In such case, it would be recommended that this be used as a stop gap measure and
that they be reviewed and updated as necessary with an attorney at the earliest convenience.

Finally, no parent or young adult wants to have this difficult conversation. And no parent or young adult wants to
think about being thrust into a medical situation where decisions have to be made regarding this level of care. But
as you talk through these sensitive health issues, however, everyone hopefully will realize the importance of having
these legal documents in place. It’s better to have the authorizations available and not need them versus needing
the signed documents and not being able to get them in case the unthinkable happens.

The opinions and other information in the commentary are provided as of July 9, 2020. This summary is intended to provide general information only, and may be of value to the reader and audience.

This material is not a recommendation of any particular estate planning or investment strategy, is not based on any particular financial situation or need, and is not intended to replace the advice of a qualified attorney, tax advisor or investment professional. While

Commerce may provide information or express opinions from time to time, such information or opinions are subject to change, are not offered as professional tax or legal advice, and may not be relied on as such.

Data contained herein from third-party providers is obtained from what are considered reliable sources. However, its accuracy, completeness or reliability cannot be guaranteed, and is subject to change.

Commerce Trust is a division of Commerce Bank.



erin anderson commerce trust
Erin Anderson, J.D. Senior Trust Counsel Commerce Trust
Erin is the senior trust counsel for Commerce Trust. Erin is responsible for the oversight of issues involving the risk and liability arising from fiduciary activities of Commerce Trust.

Prior to joining Commerce Trust, Erin served as an attorney developing complex estate plans, preparing wills and trusts with complicated tax and distribution provisions.

Erin graduated from the University of Kansas with a bachelor of science in business administration and received her juris doctorate from University of Kansas School of Law in 2000. Erin serves on the board of directors at the Kansas City Estate Planning Symposium and is on the donor development executive leadership committee at Leukemia & Lymphoma Society. She also is the middle school youth leader at Trinity Lutheran Church and is a member of the Donald H. Chisholm Planned Giving Council. In her spare time Erin enjoys spending time with friends and family. Erin's children are very involved with sports. Erin spends most of her summers on baseball and softball fields.