I have been receiving an alarmingly high volume of phone calls over the last few months from individuals who have children with special needs that are about to turn 18 and they are panicked because they have been told they will lose the ability to make legal, health care and educational decisions for that child.
I have written before about the importance of having your college-bound child sign their Durable Power of Attorney and Living Will/Health Care surrogate designation before they leave, and the same holds true for parents with special needs children. It doesn’t matter whether your child is healthy and able to do for themselves, or whether they have some disability that prevent them from being completely independent, once your child turns 18, your rights as a parent to make legal, educational and health care decisions for that child terminates.
What can you do to plan for this? Well, it depends on your child’s disability. If they have the ability to sign their name and can appreciate that they are appointing you to continue making decisions for them, then they may be able to understand and sign a durable power of attorney and a living will and health care surrogate designation. These documents would give you the ability to continue making the decisions for them that you did prior to them turning eighteen. However, if their disability is so severe that they cannot make informed legal or health care decisions, then you may need to look into filing for guardianship or under the guardian advocacy program.
In Florida, to qualify for guardian advocacy, the person with a developmental disability must have a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome that occurs before the child is age 18 and constitutes a substantial handicap that can reasonably be expected to continue indefinitely. Guardian advocacy is a way for the disabled person’s family members to obtain guardianship without having the person declared “incompetent”. Where the guardianship process requires the hiring of an attorney (and can be a very expensive legal process), guardian advocacy does not require the hiring of an attorney.
Although your authority as the parent ends when your disabled child turns 18, this does not need to be an overwhelming time. With a little planning and preparation, you can ensure that you remain in charge and continue to take care of your child.
Attorney, Laurie Ohall, is an estate planning and special needs attorney based in Brandon, Florida, serving clients throughout Tampa Bay. If you have a developmentally disabled child that is close to legal age, contact a special needs attorney as soon as possible to determine the legal options that are best for your family.