Date Posted May 22, 2020

Wilson+Miller: WHAT HAPPENS WHEN YOUR DISABLED CHILD TURNS 18 AND WHAT YOU NEED TO DO BEFOREHAND

Wilson Miller

When your child is under the age of 18, you, as their parent, can make most, if not all decisions, on their behalf. However, when your child turns 18, the law views them as an adult, and you no longer have the ability to control what and how decisions are made, or even receive relevant information about those decisions. For most parents, this is a rite of passage. They just have to sit back and watch their children leave the nest and begin their adult lives. But what if you have a child who is disabled? That child may need help making financial or medical decisions: What will happen to them? How can you step back in and continue to care for them if needed?

Have Your Child Sign a Financial and/or Medical Power of Attorney

financial power of attorney authorizes someone chosen by your child to make financial decisions for them if they are unconscious, too ill to make or communicate the decisions themselves, or otherwise unavailable to do so. Without this important document, you could end up going to court to be granted the authority to handle your child’s financial affairs. Although your child may designate you to act on their behalf, they are still able to make their own decisions so long as they maintain the ability to do so.

medical power of attorney allows your child to name a trusted agent who can make medical decisions on their behalf if they cannot make them for themselves or are unable to communicate their wishes to the relevant health care providers. This person is required, to the greatest extent possible, to make the decisions your child would have made had they been able to communicate those wishes. So long as your child is able to make and communicate their own medical decisions, they are allowed to do so. You would only be asked to step in in the event they were unable to make or communicate their wishes themselves.

While both of these documents will go a long way in helping you to continue providing for your child once they turn 18, your child has to have the required mental capacity to execute the documents. The specific requirements for determining capacity vary from state to state. It is important to note that your child’s inability to physically sign the documents does not automatically disqualify them from being able to put the documents into place.

Although your child may be able to make some decisions for themselves today, if they have a degenerative condition, you do not want to wait until it is too late to have these documents prepared. As mentioned previously, these documents are meant to help your child when they are unable to make decisions for themselves. Your child will continue to maintain the right and the autonomy to make their own decisions until they are unable to do so.

If Your Child Cannot Execute the Necessary Documents

If decisions need to be made on your child’s behalf, and your child does not have the mental capacity to execute a financial or medical power of attorney, the court will have to get involved. This can be a very lengthy, costly, and public process.

Through the court proceedings to establish guardianship and conservatorship, you will need to request that the court grant you the authority to make decisions on your child’s behalf. The exact name of the roles for which you may be seeking appointment vary by state, but generally the guardian (sometimes referred to as guardian of the person or conservator of the person) is an individual who is authorized to make general life decisions on your child’s behalf. These decisions may include things such as where your child lives and what type of medical treatment they will receive. The conservator (sometimes referred to as guardian of the estate, guardian of the property, or conservator of the estate) is the person who is authorized to make financial decisions on behalf of your child.

As opposed to an agent under a financial or medical power of attorney, if you are appointed as a guardian or conservator, you have authority to make all of the decisions, and your child ceases to be able to make any decisions for themselves. For some disabled children whose ability to make decisions is greatly impaired, this may not be a problem, but for others, this approach may be too far reaching. In some states, you may have the option to seek a limited or partial guardianship or conservatorship. In this case, you can only make decisions that are specified by a court order. For all other matters, your child retains the right to make his or her own decisions. The overall objective of the court is to promote independence.

Special Needs Trust

A Special Needs Trust is a special trust that holds title to property for the benefit of a child or adult who has a disability. The Special Needs Trust can be used to provide for the needs of a person with a disability and supplement benefits received from various governmental assistance programs, including SSI and Medicaid. A trust can hold cash, real property, personal property, and can be the beneficiary of life insurance policies. Although Special Needs Trusts are just one tool we use to help, they are an extremely important tool.

We Can Help

If you have a disabled child who is approaching their 18th birthday, now is the time to start planning for their future. We are here to assist you and your child to take the steps needed to ensure that they are as well taken care of as adults as they were when they were children. Contact the Wilson+Miller team today to get started: (501) 221-7776 or e-mail info@wilsonmillerlaw.com. In addition, our affiliate, The Wilson Law Group, can assist with the adult guardianship process in the state of Arkansas. Contact attorney Keith Morrison at (479) 521-5820 or click here to learn more.


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