What Is the Best Legal Plan for my Special Needs Child?

When your child approaches adulthood and is set to go out into the world on his or her own, parents understandably worry about their wellbeing.  Did they do a good job preparing them?  Does their child have the necessary skills to support itself financially?  These concerns are even more crucial when the adult child has a special need such as autism, which is why it is a good idea to speak with a special needs lawyer and have an active legal plan that takes care of your special needs child’s financial and medical situation.  Whether the child is capable of taking on all responsibilities or needs some guardianship, take the time to speak with a professional and know what your child can and cannot do on his or her own.

Assess Your Child’s Capacity to Make Financial Decisions

One of the hardest things for any young adult to get a handle on when they first go out into the world on their own is the ability to make sound financial decisions; this is especially difficult for child with special needs, so it is important to take a look at how well they do making financial decisions before you make any guardianship decisions.  It’s a good idea to make a checklist of how well you think they can handle this responsibility:

• How well did they perform in math in their classes?  What was the highest level they completed?
• How well can your child read?
• Will your child be employable?
• What kind of financial skills do they already possess?  Do they have the ability to balance a checkbook?  Can they read a bank statement?  Can they make investment decisions?
• Is your child able to make change at a store?
• Are they employable?
• Are they susceptible to financial exploitation?

When you take an honest look at your child’s capacity to make these sorts of decisions without you, you can outline the best course of action for the future and their independence.

Can Your Child Make Personal Care Decisions?

Finances aren’t the only decisions your special needs child will have to make on their own.  They will have to make personal decisions that we may take for granted, but for a child on the autism spectrum, they can be difficult.  Something as simple as understanding a diagnosis can prove to be a challenge, depending on how functioning your child is.  Answer these questions for yourself in order to get a better idea of what your child will be faced with:

• Can your child have a conversation with their doctor and understand the diagnosis, prognosis, and treatment plans?
• Can your child drive a vehicle?
• Can they live independently?
• Can your child learn to vote and understand the consequences?
• Can your child do everyday functions on their own, such as bathing, cooking, grooming, and dressing?

Once you answer these questions for yourself, talk to a special needs law attorney no later than two months before your child’s 18th birthday in order to decide upon a legal plan.

Understand the Different Legal Options Pertaining to Special Needs Children

How your special needs lawyer chooses to proceed with how to handle your child’s financial and medical well-being will depend greatly on your child’s legal “capacity”. In the legal realm, “capacity” pertains to the ability to understand, reason, and appreciate the consequences of one’s actions.  Overall, there are three ways to legally proceed:

Legal Documents

If your child is high functioning, the lawyer may be able to process legal documents for your child that will detail a financial and medical plan.

The documents you should be familiar with are as follows:

1. a)     Durable Power of Attorney: identifies a trusted person who has legal authority to make various financial decisions when a person is incapacitated, including paying bills, authorizing bank transactions, or filing tax returns.
2. b)    Designation of Health Care Surrogate: identifies a trusted person to make various medical decisions in the event that your child is unable to give informed consent, including authorizing a medical procedure, authorize discharge from hospital or transfer to another facility, or change residence.
3. c)     HIPAA Authorization: states the Health Care Surrogate can access confidential health care information under the HIPAA medical privacy law.

Guardian Advocate Proceeding

Guardian advocate proceeding allows your special needs child to retain the highest level of independence in their decision-making.  The goal of this court-assisted proceeding is to assign a parent or guardian as a Guardian Advocate to assist and support a special needs child with their decisions.  The adult child retains their legal rights while the Guardian Advocate has the legal authority to assist in medical or financial decision-making.  There are some limitations to this option, however.  For example, if the adult child has another mental health diagnosis separate from their autism, like bipolar disorder, the court may prevent you from filing a Guardian Advocate Proceeding.

Guardianship Proceeding

If your child with special needs has a lower capacity, your only option may be a guardianship proceeding.  This option appoints a legal guardian to make financial and medical decisions.  This proceeding may be right for your adult child’s situation if their ability to make decisions is hindered by a physical, cognitive, or mental disability.  The adult child loses some or all rights (depending on the capacity of the individual), which are granted to the guardian.  These rights include:

• The right to vote
• The right to marry
• The right to contract
• Apply for government benefits
• Make medical decisions
• Determine residence
• Seek employment
• The right to sue or defend
• The ability to manage real or personal property

Planning ahead and creating a plan for your special needs adult child can really alleviate worry and unneeded headaches that may come up if you haven’t figured out what to do.  Talking through the next phase of your child’s life with a special needs lawyer will help give you peace of mind and give your child the right amount of freedom.