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Special Needs Children Turning 18 Years Old

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

(Page 4 of 5)

There are two types of powers of attorney used in lieu of a guardianship and conservatorship: (1) Advance Directive/Health Care Power of Attorney and (2) Durable General Power of Attorney.  The former document allows an agent to make decisions about medical affairs to include typical, daily health care decisions as well as the serious end-of-life decisions, and the latter document allows an agent to make decisions about financial and administrative affairs.  Generally, if powers of attorney are properly executed, a guardianship and conservatorship is not necessary.  Additionally, the cost to secure powers of attorney is low in comparison to the court-administered process of guardianship and conservatorship and the ongoing cost is nil – there is no annual reporting to a third party associated with the powers of attorney (unless the adult child makes that specific request).

The appointment of a power of attorney can be a wholly private affair.  So long as the adult child demonstrates sufficient capacity, he or she can execute the two powers of attorney and the relationship between parent as caregiver and overseer will be continued with little interruption after the eighteenth birthday.

But only if there is capacity

However, powers of attorney can be executed by the adult child only if he or she has sufficient mental capacity.  (For powers of attorney, “capacity” is the term used rather than ability or disability).  In fact, determining capacity is often the crux of the decision-making process of whether to obtain a guardianship and conservatorship or to request the child to execute powers of attorney.  No legal checklist exists that can be used to determine whether a child meets the capacity level required to execute a power of attorney.  Thus, it is often the most important thing an attorney can do.  Yet, many attorneys are uncomfortable with making the assessment as it can be perceived to cross into the medical arena of determining cognitive ability.

Thus, if the adult child has a diagnosed condition affecting decision-making capacity, it is important to secure a medical opinion as to the adult child’s mental capacity.  If decision-making capability is not a factor, then it is general practice that an adult child with sufficient capacity must be able to consciously understand (1) the nature of a power of attorney; (2) the effect of signing a power of attorney such as when the power begins and the subject matter over which the agent can exercise control; (3) the power of attorney can be limited or broad; (4) the power of attorney can be revoked so long as the adult child has capacity to do so; and (5) the power of attorney continues even if the adult child becomes incapacitated.   However, in any case, the attorney will want to meet with the adult child alone, without the influence of his or her parents.  This allows the attorney to make the difficult decision of whether the adult child has sufficient capacity to execute the powers of attorney and that the terms in the powers of attorney are directed by the adult child.


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