The last area reviewed when meeting with a family of a transitioning disabled youth is whether the parents or other trusted adults need to remain involved in some legal capacity with the person with the disability. This could include either guardianship, conservatorship, or durable powers of attorney and health care proxies.
When a person turns 18 years old, they reach the age of majority and become their own legal person. Regardless of how severe a person’s disability is, there is no presumption of incapacity. Only a court can determine whether a person is incapacitated, to what extent, whether a guardian should be named and who should be named. This action does not take place automatically; it must be initiated by some interested person. Each state requires a medical documentation of the incapacity and sets its own standard for determining whether incapacity exists.
The most important fact for family members to remember is that without this legal finding of incapacity, there are confidentiality issues around health care and financial information of the disabled person. A parent can no longer automatically make healthcare decisions or perform banking tasks for their child. It often comes as quite a shock to family members when they realize this fact.
In order to decide whether guardianship or other legal authorities are appropriate, you must review your child’s individual needs, strengths, weaknesses and risks. No specific diagnosis, nor the fact that a person has an intellectual or a physical disability does not mean he or she is incapacitated. The determination of incapacity is very individualized. Considering whether guardianship can be avoided is a valuable process. Guardianship can be a cumbersome and expensive process. In most states the process is public, meaning it happens in open court, and the pleadings, except for medical information, filed with the court are open to the public. The legal determination of incapacity eviscerates the option of self-determination. Other alternatives to guardianship such as healthcare proxies, powers of attorney and other agency appointments, are less intrusive and should be reviewed.
However, there are times when guardianship cannot or should not be avoided. As the mother of a severely disabled teenager, and in my practice, I usually err on the side of guardianship because I find it to be a more cautious approach. The statistics of financial and physical abuse and neglect of the disabled in our communities are frightening. Many of our disabled family members may be vulnerable and at risk. Sometimes, protection is needed for the disabled individual by court intervention and oversight. Perhaps he or she lacks the capacity to validly execute a durable power of attorney or health care proxy. Or, in rarer cases, a court appointed fiduciary is needed because there is no interested party
available to serve as an agent under a durable power of attorney or a health care proxy. Each state has its own laws regarding health care proxies and durable powers of attorney, but in general the documents are as follows:
- Durable Power of Attorney: governs financial decisions; gives the agent the authority to act on the part of the principal (the person with the disability); it is typically a concurrent power meaning that the agent and the principal can act simultaneously; cannot be used to void contracts; and is easily revoked by the principal.
- Health Care Proxy: governs health care decisions; gives the agent the authority to act on the part of the principal; typically a springing power which goes into effect only when the physician says so; cannot be used for day to day health care decisions; and easily revoked by the principal.
Under each of these documents, the principal has a very low threshold for capacity to sign the documents. They must only understand at a very basic level the authority and to whom they are giving it. The difficult aspect of this for many people I work with is the fact that it is easily revoked. If you have a child that is variable in any way, this may not be the solution for you.
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