In most states, once a child reaches age 18, he or she is presumed to have decision-making capacity and the parents’ legal authority ends. You are then left with the question of “How can I help ensure that medical and financial decisions will continue to be made in my child’s best interest?” There are various ways you can continue to make important decisions for your child with each having its own advantages and disadvantages depending on the situation.
If your child is not capable of making personal, financial and medical decisions, you may petition the court to be appointed the adult child’s guardian. Although, guardianships require a court process, which can be time-consuming and emotionally difficult, there are many resources out there that can help assist you. Perhaps consulting with an attorney who concentrates in this area will exchange a rocky sail for a smooth one. There are other ways to take care of your child without going through a guardianship and court process, if appropriate.
If your adult child 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,you may be able to make personal decisions on behalf of the adult child without court intervention.
Another useful thing to know, is 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, and this procedure does not require guardianship. The person appointed is called the representative payee, and the representative payee will need to report annually showing how the money was used.
You may also establish a special needs trust. Setting up these types of trusts allows a person with special needs to protect his or her assets for certain purposes while maintaining eligibility to receive SSI and Medicaid benefits. If you are setting up the trust with your own funds, no court intervention is needed. However, in most cases, it is best to set up the trust and fund the trust with the child’s money through a court if the child lacks sufficient legal capacity.
If you are a parent with a special needs child, talk with an attorney who concentrates his or her practice in elder and special needs law to see which options are best for you and your family.