This post was authored by SNA member Benji Rubin of Rubin Law, A Professional Corporation with offices in Chicago and Buffalo Grove, Illinois. The firm specializes in legal and future planning for families of individuals with special needs including intellectual disabilities, developmental disabilities, physical disabilities and/or mental illness.

Powers of attorney are critical when you have an older child with special needs. If you are the parent of a child with special needs, you likely have grown accustomed to making medical, educational, and legal decisions on behalf of your child as a minor. When your child turns 18 and becomes a legal adult, your legal authority ends as your child’s parent. However, when your adult child has special needs, they may still need significant assistance in making these types of decisions or may be unable to make them altogether. Whatever your family’s situation may be, a special needs attorney can assist you in determining whether powers of attorney are right for you and your family.

Powers of Attorney in General

Powers of attorney are legal documents that give a person the legal authority to make specified decisions or take certain actions on behalf of another. A parent can use a power of attorney to help an adult child with special needs make important decisions if they need assistance. However, there also may be a point at which an adult child with special needs becomes incapacitated. In that instance, a power of attorney allows the parent to make important decisions on the adult child’s behalf.

The power of attorney document outlines the decisions the person designated in the document is authorized to make for an adult with special needs. The document also specifies under what conditions they may make those decisions. Different types of powers of attorney exist. For example, the healthcare power of attorney deals with medical decisions.

Some agencies also have separate power of attorney forms to authorize others to make decisions related to benefits through those agencies. For instance, the Social Security Administration has its own power of attorney or Appointment of Representative form. Likewise, each state may have a separate power of attorney for dealing with their Medicaid office.

Most importantly, an adult with special needs must have the legal capacity to sign any power of attorney document. In other words, the adult must understand the power of attorney document and its effects and be able to make decisions for themselves. An adult cannot sign a power of attorney after they already have become incapacitated and unable to make decisions on their behalf.

In addition to understanding what a power of attorney is and how it works, the adult must understand what subject matters the document covers, that a power of attorney can be limited or broad and will remain in effect until it is revoked or they become incapacitated. The adult also must understand that they can revoke a power of attorney at any time, so long as they have the capacity to do so.

Healthcare Power of Attorney

Signing a healthcare power of attorney allows adults with special needs to appoint their parents as agents to make certain healthcare and medical decisions. Some of these decisions might include:

  • Whether the person should receive a certain type of medical care or treatment;
  • Whether the person should be admitted to or discharged from the hospital;
  • End-of-life decisions;
  • Authorizations for autopsies or donations to medical research.

Adults with special needs can give their parents the legal authority to make medical decisions only in certain situations or to make all their medical decisions. 

Financial Powers of Attorney

A financial power of attorney is a document that an individual with special needs may use to designate someone to act on their behalf if they’re not able to manage their finances.

For state-specific information on the Power of Attorney document, members of the Special Needs Alliance are available to provide information for their state.

About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.

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