While privacy laws give parents access to their minor child’s medical information, they create a problem for those raising children who will need assistance past the age of 18. Although an eighteen-year-old is presumed to be able to make their own decisions, this isn’t true for children with challenges that prevent them from understanding their options, or communicating what they want. To avoid losing the ability to access medical records or consult directly with doctors and other advisors and experts, the Power of Attorney is a critical step..
Their Own Power of Attorney
In our experience, a child with challenges may still have sufficient capacity to understand and sign a Power of Attorney. As long as they understand they are allowing their parent or parents to have access to their medical information and to make health and financial decisions for them if needed, they can sign the Power of Attorney. Part of our job is to interview the young adult child, and perhaps review one or more letters from doctors and other professionals saying the child has enough competence to understand what a Power of Attorney is, and who they want in that role.
A High Priority Document
For making decisions on behalf of a disabled child, the alternative to a power of attorney is a court-appointed guardian. This is used when the child does not have the understanding of, or the ability to sign, their own Power of Attorney. However, a guardianship proceeding takes time (about three months) and is much more expensive than a Power of Attorney. Valuable time can also be lost if a family hasn’t “gotten around to it.” In an emergency, a decision may have to be made right away, but the child either never was competent to make such decisions, or, despite having that competence, is now too sick or injured to make critical decisions. Yet without the Power of Attorney, the parents can’t make those decisions. Their only recourse may be an emergency guardianship, which still takes some time and is expensive.
Parents work hard taking care of their disabled children. Getting a Power of Attorney is not complicated, and not a major expense. Yet it may be the most important gift you give them for their 18th birthday!
Special needs trusts may also be created to assist in passing down assets to your children. If assets are given directly to those receiving disability benefits such as social security, they run the risk of losing eligibility for those programs because those assets are counted as income. With a special needs trust, assets can be designated for use in paying for medical expenses or other costly items that are required for the care of special needs individuals. They also provide the ability to appoint a trustee who can assist in financial needs. If you’re concerned about the future of your special needs child and want to take the right steps towards ensuring their ongoing care, contact Highpoint Law today.
