When your child turns 18, they gain the authority to make decisions for themselves. As a parent, you may worry about what might happen to your adult child if they become unable to manage their affairs due to illness or injury. Families may consider creating an estate plan in which young adults grant their parents power of attorney should the worst happen.
Understanding Power of Attorney
In a power of attorney, a person knowingly and voluntarily authorizes another individual to act on their behalf for specific matters listed in the power of attorney document. Powers of attorney can address healthcare, financial, and other legal or personal issues. By default, a power of attorney terminates if the person who executed it becomes incapacitated, although they can create a durable power of attorney that remains effective or goes into effect if they become incapacitated.
Do Parents Automatically Have Power of Attorney Over Their Adult Children?
Minnesota law treats an individual as an independent adult once they turn 18. A parent cannot pursue an automatic POA over a child who reaches adulthood. Instead, the adult child must agree to execute a power of attorney in favor of their parent(s). However, young adults may consider signing a POA nominating a parent as their agent in the event the young adult suffers a period of incapacity. The POA can authorize their parent to make medical or financial decisions for them if the young adult cannot make or communicate those decisions due to physical or cognitive incapacity.
How Can Parents Obtain a POA for Their Adult Child?
A parent can obtain a power of attorney for an adult child only with the child’s consent, as the adult child must execute the power of attorney form. A person can execute a power of attorney in favor of their parent while they possess legal capacity. They must sign a power of attorney knowingly and voluntarily for the form to become valid and enforceable. A valid power of attorney must comply with the requirements of Minnesota law; parties may use the statutory short-form power of attorney or hire an attorney to draft a Minnesota-compliant POA.
Although Minnesota does not require witnesses or notarization for a power of attorney, getting a POA notarized can prevent problems enforcing the POA, such as third parties like healthcare providers or financial institutions questioning its legitimacy.
What if a Parent Has an Adult Child with Special Needs?
Parents of adult children with special needs may need to pursue other legal alternatives to a power of attorney if an adult child lacks the legal capacity to execute a POA. Instead, parents may need to obtain guardianship/conservatorship to manage their child’s legal, medical, personal, and financial affairs.
Guardianship allows a party to manage an incapacitated person’s personal and medical affairs, whereas conservatorship authorizes a party to manage the person’s financial affairs. Establishing guardianship/conservatorship will require parents to petition the court to appoint them as their child’s guardian or conservator. The court will likely require a hearing for the parent to prove their child’s incapacity and need for guardianship/conservatorship and show why they should serve in the role.
Contact an Estate Planning Attorney Today
When your child reaches adulthood, an experienced estate planning lawyer can help your family develop a comprehensive plan that allows you to look out for their interests should injury or illness befall them. Contact Jaspers, Moriarty & Wetherille, P.A., today for a confidential consultation with an estate planning attorney to learn more about adult children granting powers of attorney to their parents in Minnesota.