When your child reaches age eighteen, your son or daughter is legally an adult. Adulthood, for all persons, brings legal rights and responsibilities. An adult can legally enter into a contract and make medical decisions. Moms and dads, including the author of this article, are surprised to learn that, after they have made decisions for their child for eighteen years, now medical providers ask them to leave the room during doctor’s appointments and are no longer able to share information with them. This situation can be even more challenging for the parents of a child with special needs. Before your disabled child turns eighteen, it is important to determine whether a parent should continue to be involved in her financial and medical decisions. Will a court conservatorship be necessary, or will there be a less expensive and less restrictive option which will allow parents and others to continue to participate in decision-making? There are several alternatives to consider.
If the disabled person has sufficient capacity to understand and execute documents, she can sign powers of attorney to allow an agent, such as a parent, to handle health and financial affairs without court supervision. In California there are two types of powers of attorney: one which deals with finances, and another which deals with health. By signing a financial power of attorney, the adult child can give a parent or other trusted person the authority to make financial decisions for her. The power of attorney can be effective while the person with disabilities has capacity, or it can become effective at a future time when the individual loses capacity. A health care power of attorney, also called an advance directive, gives a parent or other individual the ability to make heath care decisions for the adult child. In addition, the adult child with sufficient capacity can sign a HIPAA authorization which will permit parents or other individuals to access the child’s health records and other medical information. Of course, with the young adult’s consent, parents or others can always informally assist her in making her own independent medical and financial decisions.
If the person with a disability does not have the capacity to understand and sign documents, it may be necessary to establish a court conservatorship. Before authorizing the establishment of a conservatorship, the court must determine that a conservatorship is the “least restrictive alternative” for making decisions for the disabled person. There are two kinds of conservatorships. A regular conservatorship gives the court-appointed conservator full decision- making powers. Limited conservatorships are similar to regular conservatorships, except they are only established for developmentally disabled adults. A limited conservator’s duty is to help the limited conservatee develop self-reliance and independence. The judge will only give the limited conservator powers to do things the disabled person cannot do without help.
If a conservatorship is necessary, it’s a good idea to start the process well before the disabled person’s eighteenth birthday. An estate planning and special needs attorney can help you evaluate your child’s individual situation and arrive at the appropriate arrangement for your child.
Article was written for Sacramento Parent. You can view it here.