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Special Needs Children Turning 18 Years Old

By Lori K. Murphy, Esq., Bean, Kinney & Korman, P.C.

(Page 1 of 5)

A single mother of an adult child visited me to prepare her estate plan.  During our first meeting, she shared that her 24-year-old adult son lives at home and has a mental impairment.  He recently needed a new physician and my client requested to direct his medical care. In response, the new physician asked for her sonís medical power of attorney.  My client was thrown for a loopĖshe had always directed his medical care and no one before had asked for a power of attorney.  Later, she determined this was because her son had the same medical treatment team since he was a young boy and the team knew her sonís medical condition and that his mother directed his care.  Now that new care was needed, the physicianís office properly sought the motherís authority to direct care and she needed to determine how to continue to help him.  Our discussion turned from her own estate planning to one about guardianship, conservatorship and powers of attorney.

In no legal field have I been challenged more than in representing families with special needs children.  Over the past 14 years, I have had the pleasure of working with families with estate planning efforts, including those who have children with Down syndrome, autism spectrum disorder, spina bifida, birth injuries and other conditions impacting a personís mental capacity.  A topic many families are passionate about is determining how to attend to the less-abled child after he or she attains the age of 18 (the age of legal majority) and whether a guardianship and conservatorship is appropriate.

When discussing this topic with clients, it is crucial to consider both the cognitive capability of the child and the parentís perceived need to continue involvement in the childís financial life and medical affairs.  Other relevant factors include an analysis of the pros and cons of guardianship, conservatorship, agency under a financial power of attorney, and agency under an advance directive/health care power of attorney.  Additional factors that impact the analysis include whether the child needs outside care, such as an assisted-living facility or companion-care home, and the parentís financial resources.

Important Factors

In determining how to best help parents provide for their adult child with special needs, it is important to take into account the self-sufficiency of the adult child.  Here are factors to discuss when tailoring a course of action:

  • Whether the child is capable of communicating his or her needs and wants regarding his or her care;

  • Degree to which the child can adequately feed, clothe and otherwise take care of his or her basic needs;

  • Whether the child is employed outside of the home;

  • Whether the child will require outside care (i.e., an assisted-living facility);

 

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