I often receive calls from parents who are challenged by their children’s mental health, emotional, or behavioral needs, and those children are turning 18 soon. "I need a guardianship over my son, he's turning 18." As I talk to the parents I find out that the son is in mainstream school, holds down a job and is getting his driver's license. Not exactly the prime candidate for a guardianship.
However, these young men and women may still need and want their parents or other relative to be involved in their care, to help them with their banking, to be able to get information from their doctors in the event of a hospitalization, or to be able to call the insurance company to check on a claim. In order for someone to assist the child after they turn 18, the child will need to sign legal documents giving another person permission to obtain information or take action on their behalf.
A signed health care proxy will allow the appointed parent or relative to make health care decisions if the child is deemed unable to make those decisions for themselves. The signed HIPAA release will allow the appointed person to obtain medical information on the child's behalf and talk to health insurance companies about claims and other issues. And a signed durable power of attorney will allow the parent to assist the child with their property and finances.
If you are thinking about bringing your over-18 child to an attorney to talk about these documents, keep in mind that the attorney will need to speak to your adult child privately to find out what their wishes are, and that the adult child is the client, not you. This is true even if you are paying the bill. The child can give their permission for some information to be shared with you and can request that you be in the room for most of the meeting, but they will also have the right to tell the attorney things that are kept confidential.
You should not use your own personal estate planning attorney to have these documents drafted for your child. This is because if your child were to ever need a guardianship or conservatorship, your own attorney has now become your child's attorney as well and would not be able to assist you in pursuing a guardianship over your child.
There are indeed many cases where a child with special needs does need a guardianship or conservatorship, but there are just as many or more cases where having legal documents in place to allow the adult child to have assistance with their health and financial matters while retaining their legal rights is the most appropriate course of action.
I will be speaking on this issue in September at the Transitional Age Youth Group of the Parent Information Network, which is a is a parent information support and advocacy program designed by parents and professionals to help families that are challenged by children’s mental health, emotional, or behavioral needs.
Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given. The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.