Disabled Adult Children
Planning for the Future of a Disabled Person
At 18 years of age, all individuals, including those with developmental disabilities, reach the legal age of majority. This means that parents can no longer make decisions legally on behalf of an adult child, regardless of the nature of the individual’s disability and regardless of whether or not the individual still lives with the family. Several options need to be considered:
Health Care Directive and Financial Power of Attorney
Under the federal Health Information Portability and Accountability Act (also known as HIPAA), parents do not have access to their child’s health information or the ability to make health care decisions for their child after the child turns 18 years old without the child’s authorization. This applies to disabled children as well. Similarly, financial information is protected by federal confidentiality laws, even if the parents are still financially supporting their child.
These documents allow a person to name someone to make their health care and financial decisions if they cannot. Under a Health Care Directive, if a person becomes mentally incapacitated his/her appointee, referred to as a Health Care Agent, speak with doctors regarding the person’s condition, is able to review the patient’s medical records and can make medical treatment decisions for them as authorized under his/her document. For general or financial matters, an incapacitated person’s appointed Attorney in Fact may continue paying bills, speak with financial institutions on his/her behalf, receive information on his/her accounts, and make a financial decisions as authorized under the General Durable Power of Attorney document.
A disabled person with mental capacity to fully understand the content and intention of the documents should have a Financial Durable Power of Attorney and a Health Care Directive.
When an individual over the age of 18 does not have the mental capacity to fully understand the content and intention of the Financial Durable Power of Attorney or Health Care Directive, their family would look to guardianship as an option for their family member. A guardian is defined as “a person or agency appointed by a court to act on behalf of an individual”.
In all cases, guardianship should be viewed as a solution of last resort, because it removes an individual’s fundamental right of self-determination.
Special Needs Planning
The attorneys at Paule, Camazine & Blumenthal assist their disabled clients with legal planning for their long-term needs. We advise our clients on how to effectively provide for their disabled loved one with careful regard for preserving eligibility for Medicaid and other public benefits. It is important to seek the help of an experienced attorney to have a Special Needs Trust or Supplemental Needs Trust prepared. Certain requirements must be met to eliminate the risk of being disqualified for public benefits.
The purpose of a Special Needs Trust is to supplement the public benefits received, not to replace them.