The Voice is the e-mail newsletter of The Special Needs Alliance. This installment was written by Special Needs Alliance member Barbara Hughes, Esq. of Madison, Wisconsin, who comes to her interest in facilitating the best in special education experiences from her long past "life" as a sixth grade teacher. Ms. Hughes is a partner in the Madison law firm of Hill, Glowacki, Jaeger & Hughes, LLP, where her practice is focused on special needs planning, elder law, and general estate planning and administration. A Fellow and past board member of the National Academy of Elder Law Attorneys, in recent years she (along with several of her law partners) has consistently been recognized as one of the city's best attorneys in Madison Magazine and selected as a Wisconsin estate planning and probate Super Lawyer in Law and Politics Magazine, ranking in 2009 as one of Wisconsin's 25 top women attorneys.
March 2010 - Vol. 4, Issue 4
Is your child about to become an “adult” in the eyes of the law? In your state, the age of majority may be 18, 19 or 21. Some significant changes accompany this milestone. Most important for you as a parent may be the loss of legal authority to make decisions for your child and the loss of automatic access to information about this young adult. Many parents of a newly “adult” child face that threshold with some trepidation. Is your child ready and able to exercise the rights and responsibilities that come with reaching the age of majority? How will you and your child navigate this change in status? Does some action need to be taken?
Health Care Matters
What if your daughter, Amy, has medical problems or is in an accident? Amy has an autism spectrum disorder, and fortunately is rather high functioning. Can the medical care providers speak with you about Amy’s medical conditions? Will you be able to consent to surgery or other treatments–or participate at all in these decisions?
If Amy is mentally competent at age 18, she should execute a health care power of attorney (sometimes called a health care advance directive) appointing a parent or other trusted adult as the substitute medical decision maker, if one is ever needed. Given the relatively higher incidence of vehicle accidents involving young adults, it would be helpful if high schools required a class on the transition that accompanies those 18, 19 or 21 candles, and encouraged newly minted adults to sign health care powers of attorney.
What if your son, Michael, is not competent at the age of majority? You probably know the answer: a guardianship or conservatorship is ahead. In most cases a court will appoint you as Michael’s “guardian” or “conservator,” to make health care decisions for him. Just as when you were Michael’s natural guardian before his age of majority, now you will become his legal guardian–with some added reporting duties that did not apply to you as his parent and natural guardian.
Similar issues arise in the financial arena. If your now adult son, Dylan, is competent, he can sign a financial durable power of attorney naming you as his agent or “attorney-in-fact” to assist in managing his financial affairs when needed or appropriate. Given that Dylan, like most young adults, might be reluctant to share any of his newly found power over his purse strings, you may need to adopt some creative strategies to persuade him to cooperate. First of all, Dylan needs to understand that signing a durable power of attorney does not mean relinquishing any power over his finances. Instead, it results in adding you back to his financial team, a position you always held in the past. With both of you able to manage his financial affairs, either of you will be able to take action when needed. Second, give Dylan some powerful examples of situations in which he might need you to have some legal authority over his financial affairs. What if he is in a car accident and “out of it” for a period of time=96won’t he need someone to deal with the insurance company? What if Dylan qualified for Medicaid and Supplemental Security Income (SSI) at age 18? He probably could use some help dealing with the related bureaucracies.
If your adult daughter, Beth, is not mentally capable of handling finances, she will need a guardian or conservator of her “estate.” (States differ on the term used for this role.) Unlike a financial durable power of attorney document which removes no authority from Dylan as the grantor of the power, guardianship or conservatorship will remove some or all of Beth’s legal authority over financial matters. Guardianship or conservatorship results from a court proceeding in which a judge evaluates Beth’s competence or ability to manage her finances and weighs the need for protective intervention. Guardianship or conservatorship may be limited in some cases, so if Beth is able to make some financial decisions or handle a small checking account, the court may order that she retain such rights.
What about the school setting? When Amy, Michael, Dylan and Beth reach the age of majority, their parents will lose all authority over their adult child’s education, as well as all access to their records. For Michael and Beth, whom a court finds are incompetent and in need of guardianship, appointment of a parent as legal guardian of the “person” (versus the “estate” or “finances”) will give to the parent or other guardian the legal authority for decision making and records access in the school setting as well.
Most states have statutory forms for health care and general durable powers of attorney. This is not the case for a power of attorney over education, even though most young adults spend a vast amount of time in school during the first few years of their adult life. If Amy wouldn’t be found legally incompetent in a guardianship proceeding, but still needs some assistance, how can she keep you involved in her educational decisions and information sharing? What if it requires all her energy just to keep up with her class work? What if being pressed with bureaucratic tasks and decisions will push her into a meltdown? Won’t these tasks only increase when she heads into a vocational/technical school or college? How can you remain involved and able to help your 19, 20, 21, or even 25 year old, who is trying to meet adult educational challenges?
There is a creative solution for young adults who are willing to keep their parents actively involved in their education process: a special power of attorney for education. Some special needs attorneys have been preparing these for their higher functioning young adult clients as they reach age 18, which is the age of majority in many states. An education power of attorney may be useful throughout a young adult’s continuing education, enabling a parent or other chosen agent to help with many time consuming tasks that don’t actually enhance the student’s essential education. If you think that your child nearing adulthood is competent and may be a potential candidate for powers of attorney, consider discussing an education power of attorney with your special needs attorney.
Special Needs Alliance (SNA) attorneys and members of the National Academy of Elder Law Attorneys (NAELA) have access to a model education power of attorney. Barbara S. Hughes co-authored a 2005 NAELA Journal article for attorneys, “Planning with Special Needs Youth upon Reaching Majority: Education and Other Powers of Attorney,” with Judith Saltzman of Hickman & Lowder Co., LPA in Cleveland, Ohio, who focuses her practice in special education law. Saltzman and Hughes also led a 2008 SNA meeting session on special education law and the special education power of attorney topic..
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We hope you find this newsletter useful and informative, but it is not the same as legal counsel. A free newsletter is ultimately worth everything it costs you; you rely on it at your own risk. Good legal advice includes a review of all of the facts of your situation, including many that may at first blush seem to you not to matter. The plan it generates is sensitive to your goals and wishes while taking into account a whole panoply of laws, rules and practices, many not published. That is what The Special Needs Alliance is all about. Contact information for a member in your state may be obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs Alliance online.