Planning for a Soon-to-Be Adult, Disabled, Child
What Happens When Your Disabled Child Turns 18 and What You Need to Do Beforehand
When your child is under the age of 18, you, as their parent, can make most, if not all decisions, on their behalf. However, when your child turns 18, the law views them as an adult, and you no longer have the ability to control what and how decisions are made, or even receive relevant information about those decisions. For most parents, this is a rite of passage. They just have to sit back and watch their children leave the nest and begin their adult lives. But what if you have a child who is disabled? That child may need help making financial or medical decisions: What will happen to them? How can you step back in and continue to care for them if needed?
Have Your Child Sign a Financial and/or Medical Power of Attorney
A financial power of attorney authorizes someone chosen by your child to make financial decisions for them if they are unconscious, too ill to make or communicate the decisions themselves, or otherwise unavailable to do so. Without this important document, you may need to end up going to court to be granted the authority to handle your child’s financial affairs; in California, this is called obtaining a conservatorship. Although your child may designate you to act on their behalf, they are still able to make their own decisions so long as they maintain the ability to do so.
A medical power of attorney allows your child to name a trusted agent who can make medical decisions on their behalf if they cannot make them for themselves or are unable to communicate their wishes to the relevant health care providers. This person is required, to the greatest extent possible, to make the decisions your child would have made had they been able to communicate those wishes. So long as your child is able to make and communicate their own medical decisions, they are allowed to do so. You would only be asked to step in in the event they were unable to make or communicate their wishes themselves.
While both of these documents will go a long way in helping you to continue providing for your child once they turn 18, your child has to have the required mental capacity to execute the documents. In California, a person is mentally competent as long as they can understand the rights, responsibilities, risks, or benefits involved in decisions, and the potential consequences of what they decide. It is important to note that your child’s inability to physically sign the documents does not automatically disqualify them from being able to put the documents into place.
Although your child may be able to make some decisions for themselves today, if they have a degenerative condition, you do not want to wait until it is too late to have these documents prepared. As mentioned previously, these documents are meant to help your child when they are unable to make decisions for themselves. Your child will continue to maintain the right and the autonomy to make their own decisions until they are unable to do so.
If Your Child Cannot Execute the Necessary Documents
If decisions need to be made on your child’s behalf, and your child does not have the mental capacity to execute a financial or medical power of attorney, the court will have to get involved. This can be a very lengthy, costly, and public process.
Through the court proceedings to establish a conservatorship, you will need to request that the court grant you the authority to make decisions on your child’s behalf. In California, there are two primary types of conservatorship: conservatorship of the person and conservatorship of the estate. The conservator of the person is an individual who is authorized to make general life decisions on your child’s behalf. These decisions may include things such as where your child lives and what type of medical treatment they will receive. The conservator of the estate is the person who is authorized to make financial decisions on behalf of your child.
A person appointed as conservator of both the person and the estate will usually have authority to make any decisions necessary; however, regular reports to the court are required.
Contact Us Today
If you have a disabled child who is approaching their 18th birthday, now is the time to start planning for their future. We are here to assist you and your child to take the steps needed to ensure that they are as well taken care of as adults as they were when they were children.