If an adult child has the capacity to understand and sign documents authorizing others to act on their behalf, then parents should consider a Power of Attorney, Health Insurance Portability and Accountability Act (HIPAA) Release, and Health Care Proxy.
Durable Power of Attorney: A Power of Attorney (POA) is a written document in which one individual appoints another as an agent who has authority to act on their behalf. The word “durable” simply means it remains in effect even when the person who signed it becomes disabled. In this document, an adult child would authorize their parent(s) to act on their behalf with respect to financial and legal affairs. For example, the parent(s) would have the authority to communicate with insurance companies and government agencies who might provide services the adult child needs. A POA would only be appropriate if the adult child has the capacity to understand the document being signed.
HIPAA Release: Once someone turns 18, that individual’s parents can no longer access their health information without written consent. A HIPAA release allows parents to access their adult child’s medical records and receive medical updates. This document is also only appropriate if an adult child has the capacity to understand the document being signed.
Health Care Proxy: Another document an adult child can sign is a Health Care Proxy (HCP). In this document, an individual appoints someone to make medical decisions for them if they are unable to do so themselves. Again, an adult child cannot be asked to sign this document unless they have the capacity to understand it.
If an adult child is unable to understand the above documents, then parents should consider a protective arrangement, such as a guardianship. In New Jersey, this requires certifications from doctors stating the alleged incapacitated person’s (AIP) diagnosis and prognosis. The doctor is also asked to opine as to how the disability impacts the AIP’s ability to be independent. Sometimes, only a limited guardianship is necessary. Perhaps an AIP is able to make decisions in certain domains, but not others. For example, although someone needs support with banking and healthcare, they may be independent with respect to vocational decisions.
Once parents have ascertained the level of support their child needs, they should address issues of health care and government benefits. If an adult child is on their parents’ health insurance plan, the parents should inquire how long an adult disabled child can remain on the plan. It is possible that if the child is disabled, they can remain on the policy beyond age 26. Regardless, parents should consider applying for certain government benefits for their adult disabled children.
Supplemental Security Income (SSI): SSI provides minimum basic financial assistance to older adults (65+), and persons with disabilities (regardless of age), who also have very limited income and resources. Social Security has its own definition of disabled (related to anticipated length of disability, and ability to perform work).
Medicaid: Medicaid provides health insurance. If a person qualifies for SSI, they typically automatically qualify for Medicaid.
Division for Developmental Disabilities (“DDD”) Services: (If you are not in NJ, please check your state eligibility criteria) In NJ, DDD provides services to individuals who have reached the age of 21 and meet the eligibility criteria. DDD eligibility requires that an applicant:
- be a New Jersey resident,
- be Medicaid eligible, and
- meet the functional criteria of having a developmental disability – in order to establish this last factor, an applicant must document a chronic physical and/or intellectual impairment that:
- manifested before age 22
- is lifelong, and
- substantially limits the individual in at least three of the following life activities:
- economic self- sufficiency
- the ability to live independently
As disabled children reach adulthood, there are myriad issues to be addressed. Fortunately, there are also many vehicles available to parents to enable them to continue to protect and advocate for their children, while still encouraging them to be as independent as possible.
Consult a professional to discuss your options, and decide whether you should have your adult disabled child sign documents granting you authority to act on their behalf, or if a court ordered protective arrangement would be more appropriate.
ABOUT THE AUTHOR:
Beth C. Manes, Esq., is a founding member of Manes & Weinberg, Special Needs Laywers of New Jersey, LLC. She is licensed to practice law in New Jersey, where she has been practicing for over 25 years. Her practice concentrates in Special Education Law, Special Needs Planning, Guardianships and Estate Planning. Beth is also active in her community, raising puppies for the Seeing Eye of Morristown, and serving as a member of her synagogue’s Accessibility and Inclusion Task Force. Beth resides in Essex County with her husband, several dogs, and whichever adult children are home at the time. Beth loves to travel; her favorite vacations are on a bicycle, in a tent, or observing animals not typically found in New Jersey. Beth started her career in corporate law but did not like the impersonal nature of the practice and decided to change direction. After a few more turns in her career path, Beth searched for the field of law where she could have the most impact and discovered a love for special needs advocacy and planning. (973)376-7733 firstname.lastname@example.org
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