Legal tips for when your special needs child turns 18

Every parent thinks about the milestone of a child becoming an adult when they turn 18. This will mean different things in different families. Still, parents of children with limited cognitive abilities will need to educate themselves to help avoid gaps in the child’s services or benefits. Nothing may change in the family’s day-to-day life, but that child becomes an adult (known as the age of majority) in the eyes of the law when she or he turns 18. Parents will likely want to ensure that they still can legally attend to the young adult’s affairs.

The continued care for the adult child is the immediate need, but the parent will also need to address long-range planning regarding guardianship, conservatorship and powers of attorney. There is no single right answer, so parents will need to determine what is best for the child, perhaps with input from the child or young adult if they are capable of making these kinds of decisions.

Evaluating the situation

Accurately determine current and future needs can be difficult, but the family needs to evaluate how self-sufficient the adult child is:

  • Can they feed, dress and take care of their essential needs?
  • Can they communicate their needs and wants?
  • Can they get a job?
  • Do they require outside care?
  • Are they susceptible to outside or undue influence?
  • Do they understand the consequences of their actions?

These abilities will help determine the best course of action.

Powers of attorney

This enables a parent or guardian to make decisions for the adult child legally. If the adult child or principal understands the concept, they can appoint a parent or agent to make decisions and act on their behalf:

  • Medical: Health Care Power of Attorney enables the agent to decide on daily care or more serious ones about end of life.
  • Financial: Durable General Power of Attorney enables agents to make decisions regarding personal and financial affairs, even including one-time real estate purchases and investing.

Special needs guardianship

In the eyes of the law, most children can take care of themselves and make informed decisions when they are 18, so they no longer need legal guardianship. Special needs guardianship continues this arrangement. Guardians typically have more control than conservators because they handle personal, medical and financial matters.

Petition for conservatorship

If the adult child cannot make cognitive decisions regarding powers of attorney, a conservatorship may be a viable option. The court appoints a conservator to maintain the estate on behalf of the principal. While often done for elderly parents who lose cognitive function, this can be used for young adults.

Special needs trusts

These are specially designed to protect the principal’s assets while still enabling them to gain or maintain access to Medicaid, Supplemental Security Income and other federal and local government benefits. Families in all tax brackets often find this a viable option for the ongoing care of the adult child.

It’s never too early to have a plan

Parents with a special needs child can start the planning process before an 18th birthday by evaluating the above options. Often, they can do this as part of their own estate planning because the arrangements are often intertwined.

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