Parents of children with special needs should be concerned with who will make medical and financial decisions once the child turns 18. Once a child reaches 18, the parents can no longer legally make decisions for them. The child is presumed be an adult and therefore have the ability to make his or her own decisions. There are several ways you can continue to make important decisions for your special needs child after he or she turns 18.
If your child is not capable of making personal or financial decisions, you can petition the court to be appointed the adult child’s guardian. The downside is that guardianship requires a court process, which can be time-consuming, costly, and emotionally difficult for the child with special needs and the family. In order to protect against abuse, the court will appoint an attorney for the child with special needs (called the “ward”) to determine if the child is capable of making his or her own decisions.
If you are appointed to make financial decisions for your child, the court may require that you to be bonded, file annual financial statements, and request the court’s permission before spending any of the child’s property. This process is meant to protect the child and his or her assets, but it also decreases family control.
A guardianship is not the only option out there, and there are other ways to take care of your child without going through the court process. If the child with special needs has sufficient capacity to understand, he or she can appoint an agent with a durable power of attorney over medical or financial matters or both. Depending on the type of power of attorney, the agent will be able to make financial and property decisions or medical and personal decisions on behalf of the adult child without court intervention.
If the adult child receives either Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) and cannot manage the income, the Social Security Administration allows another person to receive the funds to use on the child’s behalf. However, you will have to file an annual report showing how the money was used.
Parents can also establish a special needs trust. The trust allows a person with special needs to protect his or her assets for certain purposes while maintaining eligibility to receive SSI and Medicaid benefits. The trustee invests and manages the trust assets, and the trust usually doesn’t require financial guardian or conservator to oversee the trustee.
If you are a parent with a special needs child, talk with an attorney who specializes in special needs law to see which options are best for you and your situation.