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HighPoint Law Blog

Tuesday, October 7, 2014

My Special Needs Child is Turning 18

I often ask clients who are parents of a special needs child, “Have you decided who will be responsible for your child’s financial and healthcare decision-making after their 18th birthday?” 99% of the time the response is, “What are you talking about? I’m their parent so I will be the decision maker after they’re 18… (long pause)… right?” Wrong.


In Pennsylvania the law states that a person reaches the age of majority (adulthood) upon their 18th birthday whether they have special needs or not.  What this means is that when your special needs child turns 18, the Commonwealth considers them adults capable of making their own decisions. But what if they can’t?


An adult with special needs is considered incapacitated if they are unable to evaluate information and communicate decisions effectively, or are impaired to the extent that they are partially or totally unable to manage financial resources or meet the essential requirements for physical health and safety.


If your child is deemed incapacitated, then as their parent or legal guardian, you can petition a court to assign Guardianship for them. There are two kinds of guardianships: a Guardian of the Person, who provides shelter and makes the necessary healthcare decisions; and a Guardian of the Estate, who controls the financial decision making. A court will decide what is in the best interest of the incapacitated person and choose who the guardian(s) shall be. This process takes time and can be fairly costly, so parents are counseled to begin preparing for a guardianship situation about 6 months prior to their child’s 18th birthday.


If your child is considered to have legal capacity, then they can assign their financial or healthcare decision-making (or both) to whomever they choose through Powers of Attorney documents. Most often a child will choose their parents to be powers of attorney and there is a smooth transition upon their 18th birthday. Powers of attorney take much less time, effort, and expense for the family.


Whether you think your special needs child needs guardianship or powers of attorney, knowing that you can still be legally included and involved in the decision making for their life will provide you with peace of mind as you approach their 18th birthday.

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