Power of attorney and guardianship are two types of legal tools that parents of children with special needs may wish to utilize when their children become legal adults. Parents of children with special needs typically are accustomed to handling their medical, financial, and legal affairs. However, that legal authority ends the day that their children turn 18. No matter a child’s intellectual or functional capacity, parents will no longer have the right to make decisions for their children, access medical records, or handle bank accounts.
When adult children with special needs are unable to handle their medical, financial, and/or legal affairs, parents must determine which legal tool is both available to them and best meets their children’s needs. Parents must assess their adult child’s ability to make independent decisions in different areas of their life and the degree of assistance that the child needs to do so.
Powers of Attorney
A power of attorney gives a parent the legal authority to act on behalf of an adult child, which may include making specific decisions and/or taking certain actions. If an adult child agrees to give power of attorney to a parent, the child can sign documents authorizing the parent to communicate with doctors, school officials, employers, financial institutions, and government agencies.
Various types of power of attorney exist. The primary separate power of attorney documents include a healthcare power of attorney and a general power of attorney that deals with property and finances. Some government agencies have special power of attorney forms that an adult child can sign to allow a parent to access their records and conduct any necessary business with the agency. For instance, the Social Security Administration has a certain form that allows parents of adults with special needs to communicate with them. The Illinois Department of Human Services has an Approved Representative Form that adult children can sign to permit their parents to communicate with the agency about Medicaid or SNAP benefits.
When compared to a guardianship, a power of attorney is a less restrictive arrangement for an adult child with disabilities. While the adult child can authorize the parent to act on their behalf and communicate with others for them, they also retain the ability to make their own decisions. In many cases, the parent and child have a cooperative relationship in which the parent can assist the child in the decision-making process.
A power of attorney can be limited or very broad in scope. For instance, a healthcare power of attorney might enable a parent to make all and any medical decision for their child. In contrast, a healthcare power of attorney also could limit the parent’s authority to certain decisions, such as making end-of-life decisions for the child, if necessary.
However, signing a power of attorney may not be wise or even possible in some cases. For example, an adult child must have legal competency to grant another person power of attorney. The child must have the legal capacity to know and understand what they are signing and why they are signing it. More specifically, they must understand what a power of attorney allows a parent to do and what aspects of their life the document might affect. An adult child with special needs must also understand the duration of a power of attorney and the ability to revoke it at any time, provided they have the legal capacity to do so. If a disability prevents an adult child from legally consenting to a power of attorney, then this legal tool is not an option.
Another consideration is the ability of adult children with disabilities to handle certain issues, such as their finances. An adult child with special needs may struggle to control their spending, follow a budget, and manage their finances effectively. They may also be particularly susceptible to others taking advantage of them financially, which can be problematic. In these situations, a power of attorney may not be restrictive enough to protect the finances of an adult child with special needs.
Guardianships
If an adult child with special needs isn’t legally competent to sign a power of attorney, or if the authority of a power of attorney is insufficient to protect the adult child or meet their needs, then a guardianship may be appropriate. Generally, guardianships are a much more restrictive form of authority over another person than a power of attorney. When a parent has guardianship over an adult child with disabilities, the parent has the sole authority to make medical, financial, and legal decisions for the child. Adult children with special needs can no longer make independent decisions if they are subject to a guardianship.
Parents of adult children with special needs can choose between two types of guardianships: limited guardianships and plenary or full guardianships. As their names indicate, a limited guardianship limits a parent’s legal authority to make decisions on their child’s behalf to those decisions that are explicitly outlined in the court order granting the guardianship. Therefore, if a child can make some independent decisions, then a limited guardianship may be sufficient. Furthermore, if the child can drive, a limited guardianship is the only type of guardianship that will preserve that right.
On the other hand, a plenary or full guardianship enables a parent of an adult child with disabilities to make all decisions on behalf of the child, including those related to healthcare, finances, and more. Effectively, then, a plenary guardianship removes all ability of the adult child with special needs to make any independent decisions.
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Rubin Law is the only Illinois law firm to dedicate itself exclusively to providing compassionate legal services for children and adults with special needs. We offer unique legal and future planning techniques to meet your family’s individual needs.
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