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
A 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.
An advance healthcare directive 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.
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 power of attorney or advance healthcare directive, the court will have to get involved. This can be a very lengthy, costly, and public process.
Through the court proceedings to establish 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 conservator (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 and who is authorized to make financial decisions on behalf of your child.
As opposed to an agent under a financial power of attorney or advance healthcare directive, if you are appointed as a conservator or agent, 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
Contact Us Today
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.