Without a Guardianship or the proper documents in place, the legal authority to make important decisions on behalf of your child with special needs can be severely limited once he or she becomes a legal adult. Here are 5 things you need to know to prepare for this moment and ultimately safeguard your child’s future:
1. Everything Changes Once Your Child Turns 18
Most of the decisions that are made regarding a child’s wellbeing are made by a parent up until the age of 18 (the legal age of majority). But, when a child turns 18, he or she becomes legally responsible to make their own decisions. This is true regardless of the individual’s maturity, level of ability or disability.
2. Balancing Independence and Protection
Parents often struggle with balancing a child with special need’s independence with their own desire to care for them throughout their lives. This is especially so as it pertains to young adults who are high functioning and may be able to work and/or live on their own someday. Parents need to weigh the pros and cons of their legal options, especially if they seek to find a balance between giving their young adult some independence while preserving their right to stay in control.
3. Power of Attorneys
In very limited situations, if your adult child with special needs is capable of giving informed consent, he or she can sign a Powers of Attorney that grants you the authority to make important decisionson his or her behalf. This is generally done in lieu of filing for a Guardianship for a young adult who is high-functioning and capable of maintaining some level of independence and autonomy. In addition, you will also need a HIPAA release that tells doctors that they have the legal right to discuss your child’s private medical issues with you after he or she has turned 18.
4. You’ll Likely Need to File For a Guardianship
A Guardianship in Virginia is an order granted by the court that declares an adult with special needs to be unable to make decision for themselves. . As such, the court will then appoint a legal guardian (usually mom and dad) who will have the right to make all personal decisions on their now-adult child’s behalf. To ensure that there is no lapse in time from when the child becomes a legal adult to when the parent can take over control, parents should start looking into their options for guardianship 6 months before his or her 18th birthday.
5. A Special Needs Trust Can Help Protect Assets
A Special Needs Trust is a legal document that can hold assets for your child’s benefit without making him or her ineligible for Medicaid or Supplemental Security Income (SSI). Holding assets in trust this way can help ensure that your child has resources safely set aside for the future, while also appointing a Trustee who can manage the funds for your child if you are unable to do so..
Again, without proper planning, your ability to care for your child with special needs can become much more difficult after they turn 18. It’s important to consult with an experienced attorney early on for options regarding special needs planning and assistance with this process We invite you to contact the law office of Sheri R. Abrams at (571) 328-5795 to schedule an appointment.