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Special Needs Children Turning 18 Years Old

An issue that needs to be acknowledged by the parents is that if the adult child has sufficient capacity to execute the powers of attorney in favor of his or her parent, he or she can also execute powers of attorney in favor of another person.  An elderly woman called me to express concern that her middle-aged adult child with some mental impairment had recently executed powers of attorney in favor of his girlfriend.  It was difficult to hear the elderly woman express her concern that the girlfriend may take advantage of her son.  This is a real issue that needs to be considered if powers of attorneys sound like an easy, cost-effective solution to managing an adult child’s care.

Even though executing a power of attorney comes with its own complex issues, especially when adult special needs children are slightly mentally impaired and the determination of capacity is a close call, a power of attorney is a far less invasive means of providing for the care of a special needs adult child. It requires almost no maintenance, unlike a guardianship and conservatorship, and is a low-cost method to ensure the continued care of the child by the parents.   

Other Considerations

When deciding whether to pursue a guardianship and conservatorship of an adult child with special needs or have the adult child execute powers of attorney, it is imperative that the discussion includes consideration of whether the child is receiving or will receive public benefits (both Federal and local) and whether the parent has completed his or her own estate planning.  Public benefits and the special needs child go hand in hand with topics like appointing Representative Payee for Social Security payments, preparing special needs trusts, and the relationship of the child to the parent’s own financial estate.

Conclusion

In evaluating whether a guardianship and conservatorship or powers of attorney are appropriate, a parent should consider the adult child’s mental capacity, the ability of the child to manage his or her own affairs, and the deprivation of rights imposed by a guardianship and conservatorship.  If the adult child has the capacity to execute powers of attorney, then that is a good first step.  A formal guardianship and conservatorship may then be sought later, but only if needed.

Lori K. Murphy, Esq. is a shareholder in the Arlington, Virginia firm of Bean, Kinney & Korman PC and practices in trusts, estate planning, and estate administration law.  She frequently designs estate plans for families that include special needs children and incapacitated adults. lmurphy@beankinney.com. *Ms. Murphy was assisted in this article by Jason Malashevich, Law Student, George Mason University School of Law ‘2013, Law Clerk at Bean, Kinney & Korman, P.C.

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