Legal Issues When Your Child Goes Off to College

As you get ready to send your child to college for the first time, you’re likely overwhelmed with emotion. As a mother and stepmother of teenagers and young adults, I know these feelings too well. My husband and I are in the process of sending our third child into his freshman year of college. We have two older children as well, so this isn’t our first experience. While the personal emotions of seeing your children grow up and leave home do not get easier, there are things you can do to make the process easier in terms of legal and financial issues.

I’m a divorce mediation and collaborative family law attorney in Charlotte, North Carolina who works with dozens of families every year as they navigate the world of co-parenting. Since my husband and I have five children under two separate parenting agreements, I have unique experience that allows me to guide my clients during their shared parenting journey. I’m often asked by families to share insight into general legal issues and financial concerns they should keep in mind when sending their children to college.

That said, there are several matters that focus on the topics of legal matters and financial resources that should be addressed prior to your son and/or daughter heading off to college. Keep in mind that when your child turns 18 years old, you – as the parent – will lose the legal authority to make decisions on their behalf. For colleges and universities, this means that you have no legal right to see your child’s grades, manage their finances, make medical decisions, or speak to their healthcare provider.

With this in mind, I recommend parents and their adult child(ren) execute four important documents prior to departing for college.  It is important to note that each of these legal documents can be revoked at any time and should be revisited when a life event such as marriage transpires.  

FERPA Release

According to the U.S. Department of Education, The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. So, if your child is 18 or older when they start attending college, you won’t be able to access your child’s grades. While some families may feel that this isn’t an issue and they don’t need access to grades or academic rankings, other parents want to be able to check in to ensure their child’s performance. You can click here to read more about FERPA from the Dept. of Education.

With your child’s signature on a FERPA release document, a parent is allowed to speak directly with the college or university about their child’s performance. There isn’t a universal FERPA document as most colleges have their own unique form. In order to get this document, just reach out to your child’s college or university and they’ll likely have one that they can sign and submit. Oftentimes, these forms are done electronically which makes it even easier.

HIPAA Authorization

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. The U.S. Department of Health and Human Services (HHS) issued the HIPAA Privacy Rule to implement the requirements of HIPAA. The HIPAA Security Rule protects a subset of information covered by the Privacy Rule. This means that if your child receives medical care or is hospitalized, you as a parent may not legally be able to get information on their condition. Finding out that your child is hurt or sick would be hard enough. Yet, the situation can be worsened by also finding out that your child’s healthcare provider, hospital, or urgent care center isn’t allowed to give you information about their status or medical care.

This is where a HIPAA authorization, also known as a HIPAA release, comes in. This document will allow you to access your child’s health records and speak to their medical providers and doctors about health care issues and concerns. Of course, there are exceptions to this. In a HIPAA authorization/release, the child can specify what types of medical topics their parents can access. For instance, they may allow their parents access to information if they’re involved in a medical emergency, but they may want to keep other topics, like sex and mental health, private. This document can be drafted by a family law attorney or estate attorney.

Health Care Power of Attorney

Similar to HIPAA, the Health Care Power of Attorney addresses medical care. In North Carolina, this is also known as an Advance Health Care Directive (AHCD). According to the North Carolina Department of State, this form allows you to act on your adult child’s behalf in the event that they are incapacitated and unable to make decisions for themselves.  While this is certainly an uncomfortable topic to approach, it could be important in the event that your child is facing a medical emergency. A signed AHCD allows your child to designate a health care agent and give them broad powers to make health decisions if they’re ever in the situation when they can’t communicate their own decisions. In North Carolina, the Secretary of State’s office allows these types of directives to be filed online in the state’s system. This means they can be accessed at any time with a file number and registrant password. However, this is not necessary.

Keep in mind that the Health Care Power of Attorney document is an agreement that can be and should be individualized based on needs. Since the document has to be consistent with North Carolina law, these forms are often drafted by attorneys. The document must also be signed with a Notary Public present and have two witnesses.

Durable Power of Attorney

Another common legal title is a Durable Power of Attorney. This type of power of attorney role would allow you, as a parent, to act on your adult child’s behalf regarding legal or financial matters in the event that they are incapacitated and unable to make decisions for themselves.

Under North Carolina G.S. §32A-8 the role of a durable power of attorney is clearly defined. It states that: “A durable power of attorney is a power of attorney by which a principal designates another his attorney‑in‑fact in writing and the writing contains a statement that it is executed pursuant to the provisions of this Article or the words "This power of attorney shall not be affected by my subsequent incapacity or mental incompetence," or "This power of attorney shall become effective after I become incapacitated or mentally incompetent," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent incapacity or mental incompetence. Unless the durable power of attorney provides otherwise, where the grant of power or authority conferred by a durable power of attorney is effective only upon the principal's subsequent incapacity or mental incompetence, any person to whom such writing is presented, in the absence of actual knowledge to the contrary, shall be entitled to rely on an affidavit, executed by the attorney‑in‑fact and setting forth that such condition exists, as conclusive proof of such incapacity or mental incompetence, subject to the provisions of G.S. 32A‑13. (1983, c. 626, s. 1; 1991, c. 173, s. 1.)”

Similar to a Health Care Power of Attorney, these documents, unique to each individual, are customized and should be drafted by an attorney. This document must be signed with a Notary Public present.

We’re Here to Help

The ROAD to RESOLUTION team can assist you in the drafting of legal documents pertaining to these issues. You can also read our other blog about collaborative college planning as a co-parent by clicking here. Please give us a call at (980) 260-1600 and we can discuss your opportunities with legal document preparation. Our Charlotte-based team is here to help you and your family.

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Note: This blog is intended to be informational only and shall not be construed as legal advice.