Yikes, My Special Needs Child is Turning 18!!

Adults with special needsParents of a special needs child have a big decision to make as their child approaches the age of 18:  does my child needs a guardian, or do they need a power of attorney?

If you have a child with special needs, once they turn 17, you need to start thinking about what's going to happen when they turn 18 and you are no longer legally in control of their life.

You should identify the support required for your child and ask what other support they need, while they’re transitioning. Work with a special needs attorney and ask about Guardianship and Conservatorship. Guardianship is a way to protect an individual who can’t take care of herself especially when making an informed decision about their healthcare decisions.  In Virginia, unlike many states, financial decisions are made by a court-appointed Conservator.  An experienced attorney will explain Guardianship, Conservatorship, and alternatives that may be chosen if the child is capable of making some, but not all, decisions on her own. 

A person can be disabled in some ways, but still be competent to execute the powers of attorney. If the person understands who their family is, who she is, if she’s oriented to time, and she knows who they trust to handle their business or health care decisions, then she can probably sign powers of attorney.

A POA is written authorization to represent a person and make specific decisions on her behalf. The child may have a POA over her health care and a POA that governs her financial decisions whereas a court appointed Guardian makes a disabled child’s healthcare and a  court-appointed Conservator manages their financial assets. The court makes a decision to appoint these roles after reviewing physician statements about the disabled person's needs.  If your child's financial resources during their lifetime is unlikely to be that the SSI they qualify for as disabled adult, then you need not serve as a Conservator rather you would want to apply to be your child's 'representative payee' via the Social Security Administration.  This is a welcome alternative that is important to know about because a Conservator  must file a annual report to the Commissioner of Accounts which must be accompanied by an onerous fee! 

Remember that having power of attorney over a child's financial matters doesn't give parents power over everything. Obviously, financial powers  not covered in the POA document are things over which the agent doesn't have the authority; so make sure the document is drafted by an attorney that specializes in special needs planning. Another important consideration, is that POA can be revoked, if  the person who has made the appointment is has the capacity to revoke the document whereas a Guardianship/Conservatorship cannot be revoked by the special needs person until the court determines otherwise.

Reference: Effingham (IL) Daily News (April 15, 2018) “Teaching parents about guardianship of disabled children”



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