Privacy laws were enacted so that when a child turns 18, his or her parents are no longer able to make medical or financial decisions for them because that child is now considered a legal adult. This is the case for all children turning 18, especially those with special needs and those who are unable to make appropriate decisions for themselves. So, what are your options as a parent of a child with special needs who is approaching adulthood?
If your child with special needs is able to understand and make his or her own decisions regarding finances and health care, then your child may be able to execute advanced directives. Advance directives include a Power of Attorney, a Health Care Proxy (with a HIPAA release), and a Living Will. A Power of Attorney is a legal document wherein an individual appoints an agent to make financial decisions for them if he or she is unable to do so themselves. A Health Care Proxy is a document that allows an individual to appoint a health care agent to make medical decisions on their behalf in the event they are unable to make decisions themselves. The Health Care Proxy should contain a HIPAA release allowing the agent access to medical records. A Living Will is a document wherein an individual sets forth their end-of-life care wishes, including the use of life-sustaining treatments. If your child with special needs appoints you as their agent, you will remain involved in this important decision-making role, even after your child reaches age 18 and beyond.
A 17A Guardianship is a Surrogate’s Court proceeding specifically created for individuals with developmental and/or intellectual disabilities. This proceeding is based on cognitive abilities and not on functionality. You will be required to submit a recent psychological evaluation with the petition for guardianship along with other supporting documents and two doctors must certifying as to the permanency of the person’s disability. The Court may or may not require the appearance of the person with special needs at the hearing. Once appointed, the Guardian has the power to make any and all decisions, including financial, medical, and end-of-life decision making as necessary.
Supported Decision Making
New York recently passed into law a process called Supported Decision Making. The Supported Decision Making law describes who may be a supporter, the kinds of support that the supporter can give, and the limitations on supporters’ authority. A supported decision making agreement must be entered into through a facilitation process which will be overseen by the Office of Persons with Developmental Disabilities (“OPWDD”). A supported decision making agreement is voluntary and allows a person to make his/her own decisions with support. Supporters cannot make decisions for the decision maker (child or family member who needs support). Decisions made through the supported decision making process are not legally binding on the decision maker.
These are the broad outlines of this new law. The implementing regulations that will direct this process have not yet been published by the Commissioner of OPWDD.
For more information on any of these options as your child with special needs approaches age 18, please contact an elder law or special needs planning attorney.