Back To School Legal Guidance For Students Aged 18 Years And Older

This is the season to celebrate Back to School. In anticipation of Back to School I would like to

provide some legal guidance for Students aged 18 years and older who are heading Back to

School. Aged 18 years and older means that they are now adults which also means that their

parents no longer have legal authority to assist with financial and health decisions without legal

documents in place.

This year is my 19th year in business as a zealous advocate providing legal services for clients

who find themselves in need of legal guidance. Students aged 18 years and older need legal

guidance to make sure that their legal affairs are in order especially as they head Back to School.

Even though students are busy packing up their belongings and saying their good-byes to family

and friends, they must choose now to “Put It In Writing” by signing legal documents before they

head Back to School. In California, the legal documents required for a complete estate plan

include a Trust; a Last Will & Testament – Pourover Will; a Healthcare Directive, and a Power

of Attorney. These legal documents need to be in writing to avoid the cost and delay of court

procedures upon the unexpected incapacity or death of a student. Students aged 18 years and

older who don’t own real property or assets that exceed $100,000 do not need a California Trust.

But students aged 18 years and older still need a Last Will and Testament; a Healthcare

Directive, and a Power of Attorney to avoid the cost and delay of court procedures upon their

unexpected incapacity or death. If students fail to sign legal documents before they head Back to

School, their decisions and directions aren’t known and they are causing their family undue

stress, undue delay, and significant costs.

I advise students that California law will write a will for them and that their property will be

distributed to their spouse and/or their children if they die without a signed Last Will and

Testament. Most students heading Back to School are not married yet and do not have children

yet. As a result, California law will write a will for them that distributes everything they own,

their assets and their liabilities, to their surviving parents. The student’s surviving parents will

then have the task of gathering the student’s assets, even if it is just a bank account and a bicycle

or vehicle or removing items from a storage locker. Student loans are forgiven upon the death

of a student, but there are still other creditors that the student’s surviving parents will have to pay

which may include landlords and cell phone carriers as well as medical and funeral expenses.

Another consideration for Students aged 18 years and older is that sometimes parents are not the

correct choice because they are too far away or too busy to assist in the administration of an

estate. When I left home at age 18 to attend college at UC San Diego, my parents were not the

correct choice for my legal documents because my twin sister would have been better equipped

at taking care of things for me. Not only was she my best friend growing up and she knew

exactly what decisions to make for my financial and health arrangements, she also was closer to

me since she was attending college at UC Santa Barbara while my parents were home in the Bay

Area.

I also advise students that when they choose an Executor, the person they nominate can decline if

they are not able to act. This is why it is necessary to nominate a second and third choice as

back-up. The nominated Executor does not need to have formal training. If needed, the Executor

can hire a number of professionals to assist them with the estate administration: an attorney, a

financial advisor, a tax accountant, and a realtor are all professionals that are trained to assist in

the process.

Students heading Back to School should sign an Advance Healthcare Directive. The directive is

triggered if they can no longer make or communicate their healthcare decisions. Students have

the right to give instructions about their healthcare and to name someone to make healthcare

decisions for them, a nominee. This is the agent that they are designating to make healthcare

decisions for them. In some circumstances, students may want to name co-agents, for example

both of their parents. The directive is important because they are providing to their agent

instructions for health care, including end-of-life decisions. This portion of the document allows

them to direct that their healthcare providers and others involved in their care provide, withhold,

or withdraw treatment in accordance with the choice they have indicated. This legal document

lets students express their wishes regarding donation of organs and the designation of their

primary physician.

Students heading Back to School should sign a Power of Attorney for financial matters. This

document becomes effective when a physician determines that the student is unable to make their

own financial decisions which sometimes is the result of a car accident, a stroke, or a coma. If

students do not have a signed Power of Attorney their family members will have to petition the

court to be appointed as their conservator. A conservator is simply a court appointed power of

attorney. It is a lengthy and costly process which can be avoided by having a signed Power of

Attorney in place. This is needed to file the student’s tax return or to sign on the student’s behalf

a settlement of a legal claim.