April is Autism Awareness Month. Understanding autism is very near and dear to my heart because I have a niece who has been diagnosed with Asperger’s and two of my daughter’s step-siblings have been given the same diagnosis. Not only is it important that we try to understand what it is like to have such a disability (and have more caring and empathy), but as a parent, it is important to understand that once a child becomes an adult, we may lose the ability to protect them and make decisions for them. This holds true for any disabled child and it is usually the parents of disabled children who understand best what I am talking about.
Most people have the joy of raising a child and knowing that they will “leave the nest” one day and be independent. Not so with many disabled children – they may continue, even into adulthood, to need the care of their parents. They may be unable to live independently. However, once the child becomes an adult, a parent loses the right to make decisions for them – health care, education, and financial decisions.
What is a parent to do when their disabled child becomes an “adult” but really is not capable of making adult decisions? If the child is capable of understanding that they want their parent to continue helping them with their educational choices, health care and financial decisions, the child can sign documents appointing the parent to help them with these decisions. Those documents include a Durable Power of Attorney (which allows you to appoint an “agent” to “step into your shoes” and make banking, investment, contractual and other types of financial decisions) and a health care surrogate designation (which allows you to appoint a “surrogate” to “step into your shoes” and make health care decisions and speak to doctors on your behalf). While these documents are important for any adult, they are especially important for a special needs adult child.
What if your child cannot sign a durable power of attorney or health care surrogate designation? Then, you may have to proceed with a guardianship or guardian advocacy proceeding. In Florida, a guardian advocacy proceeding allows the parent to become the guardian over their disabled child without the need of an examining committee finding the person to be “incapacitated”. Only adults with certain types of disabilities which manifested themselves prior to the child’s 18th birthday are able to proceed via guardian advocacy. These disabilities include retardation, cerebral palsy, autism, spina bifida, or Prader-Willi Syndrome. If your child does not fall into one of these categories, then filing for guardianship may be the only alternative. Check out this blog post about the differences between guardianship and a guardian advocacy proceeding.
If you have other questions about estate planning for your special needs child or filing for guardianship on behalf of your adult disabled child, please call the Law Offices of Laurie E. Ohall, P.A. to set up a free 15 minute phone consultation. Contact Ms. Ohall today if you need estate planning, elder law, probate or guardianship assistance.