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Age Eighteen: Decisions, Decisions...

Updated: Jun 4

PART OF OUR RESOURCE 2024 SERIES: Expanding your options and your community


Featuring guest blogger and special needs planning attorney Matthew Goodin.


 

Turning eighteen is a significant milestone for many reasons. In most states – 47 to be exact – turning eighteen is synonymous with adulthood, whereby someone is legally recognized as an adult in society. The time surrounding someone’s eighteenth birthday is typically filled with momentous occasions including graduating high school, getting a driver’s license, and moving off to college. But adulthood also brings with it certain rights and responsibilities, such as the right to vote, sign contracts, join the military, and make important medical decisions. Although these are often marked with less fanfare, they are no less important.

 


I.          Decision-making at Eighteen

 

            For minor children, parents are the de-facto decision-makers. Upon the child becoming a legal adult, parents lose this automatic decision-making authority because adulthood carries with it the assumption that the adult child can make their own decisions and manage their own affairs. The rights and responsibilities afforded to a legal adult automatically attach, irrespective of the person’s ability to exercise them.


But what if the person entering adulthood is unable to make their own decisions or manage their own affairs? In these situations, this assumption may create a dilemma where the adult individual cannot do things for themselves and no one else can assist them due to a lack of legal authority. How to address this dilemma is a question faced by all special needs families.


Parents of children with special needs face unique questions as their child enters adulthood. Should my child graduate or remain in school? Should my child attend a day program after graduation? Should my child pursue further education? Should my child explore employment opportunities? Although these are all important decisions, they are not the most important one. The most important decision is deciding whether guardianship is appropriate for your child. Your answer can have a significant impact on your child’s future.

 


II.        Guardianship

 

Almost all parents of children with special needs have heard the term Guardianship. Unfortunately, many parents are given inaccurate information about Guardianship and when/if it is appropriate. Despite what many parents have heard, having a child with special needs does not automatically require that Guardianship be pursued. Simply because someone has special needs does not automatically mean that Guardianship is the most appropriate option to address their decision-making capability (or lack thereof). In many cases, an individual with special needs can make decisions and manage their own affairs with proper assistance and support. Therefore, careful consideration must be taken to determine your child’s decision-making capabilities and the appropriateness of Guardianship – or alternatives – for them.


Generally, the greater the gap between a person’s actual decision-making capability and their assumed decision-making capability (by virtue of turning eighteen), the greater likelihood that Guardianship is more appropriate. Conversely, the smaller the gap between a person’s actual decision-making capability and their assumed decision-making capability (by virtue of turning eighteen), the greater likelihood that an alternative arrangement to Guardianship is more appropriate. Guardianship and alternatives to Guardianship are designed to bridge the gap between where the law assumes someone is (by virtue of becoming an adult) and where they actually are in terms of decision-making capability. 


Guardianship is a court process which examines a person’s ability to make important decisions and their ability to manage their affairs. The Guardianship process involves evaluating the person to assess their decision-making capability. If the court determines that the person is unable to make decisions or manage their affairs, the court appoints someone to do so for them. In those situations, the Guardian becomes the legal voice and legal decision-maker for the person. This arrangement is analogous to “substituted decision-making” since the person subject to Guardianship loses the ability to make certain decisions for themselves. Guardianship is NOT designed to protect someone from making informed (yet, “bad”) decisions or decisions we disagree with. Guardianship is only reserved for situations in which a person cannot competently make decisions for themselves or manage their own affairs.


Guardianship is a very serious legal process which can result in a person losing the ability to make decisions for themselves and losing certain rights, such as the right to vote, sign contracts, drive, or even marry. For these reasons, Guardianship should be considered as the option of last resort to protect an individual. Less restrictive alternatives should be considered before proceeding with Guardianship.

 

 

III.       Power of Attorney

 

If Guardianship would unnecessarily restrict an individual’s decision-making capabilities, an alternative to Guardianship should be considered. The primary alternative to Guardianship is a Power of Attorney (POA) arrangement.


A POA is a legal document in which someone (the “Principal”) gives another (the “Agent”) legal authority to speak and act on their behalf with respect to the Principal’s legal, financial, and/or medical affairs. A POA is a less restrictive alternative to Guardianship because the Principal does not lose any decision-making authority. Rather, they empower their Agent(s) to act on their behalf, if needed. Contrary to Guardianship, a POA arrangement is analogous to “assisted decision-making.” By signing a POA, the Principal does NOT lose the ability to make decisions for themselves or lose any rights.


Before signing a POA, the Principal must have “legal capacity.” Legal capacity is a basic understanding of the document, what is does, and the consequences of signing. Legal capacity is subjective and is evaluated on a case-by-case basis. The legal capacity threshold can sometimes serve as a barrier; if a person lacks legal capacity, they cannot execute a POA. For individuals with special needs who meet the legal capacity threshold, a POA can be an attractive alternative to Guardianship by providing the individual with assistance when needed, but without the loss of rights which accompany Guardianship. In many cases, the parents are named in the POA as the child’s Agents, which gives the parents the legal authority to assist their child with special needs with certain decisions and the management of the child’s affairs.


However, POA’s also carry some risk. A POA does not afford protections against the Principal making bad decisions or mismanaging their affairs. For individuals with special needs, a POA does not protect them from being unduly persuaded by others to make decisions which are against their best interests.


Upon your child with special needs becoming an adult, careful consideration must be taken to determine how much assistance they require with respect to decision-making and the management of their affairs so the appropriate steps may be taken to provide the necessary supports in the least restrictive manner possible.

 

 

IV.       Social Security

 

            Turning eighteen is also important for Social Security purposes. Social Security benefits for someone who meets the definition of “disabled” under the Social Security rules consist of Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI).


Turning eighteen is important for SSI eligibility. SSI applicants are divided into two categories based on the applicant’s age: under eighteen or eighteen and over. If an applicant is under eighteen, “deeming” rules apply. Deeming is a process in which Social Security considers the finances of someone else when determining an applicant’s eligibility. This is most common in parent-child situations. Accordingly, if you apply for SSI benefits on behalf of your minor child with special needs, your finances (as the parent) are considered when determining your child’s eligibility. These deeming rules often result in minor applicants being ineligible for SSI benefits.


Upon an applicant turning eighteen, the deeming rules no longer apply. Therefore, any application for SSI benefits will be based solely on the adult applicant’s finances. For these reasons, many children with special needs do not become eligible for SSI until eighteen.


SSI is a monthly cash benefit provided by Social Security to meet a person’s basic living needs. The SSI program is designed as a fallback benefit for individuals who – due to disability – have never worked or who have worked, but do not have sufficient credits to be insured (and eligible for regular disability benefits) under the Social Security program.

For many individuals with special needs, SSI benefits are the primary, and perhaps only, source of income to meet their basic living needs. Even if your child with special needs doesn’t “need” SSI benefits at age eighteen (because they live at home and their needs are already covered), it is critical to still apply for benefits. This is because in order for your child to be eligible for SSDI benefits at a later date (by drawing off a parent’s Social Security earnings record), the child’s disability must be established for Social Security purposes prior to age twenty-two. The easiest way to satisfy this requirement is to receive SSI benefits before turning twenty-two.


Having a child turning eighteen is an exciting and stressful time for parents. This is especially true for parents of children with special needs.  All parents of children with special needs who are entering adulthood must carefully consider Guardianship and alternatives and should apply for SSI benefits for their child at eighteen.


 

Guest Bio: Matthew Goodin

 


Matthew Goodin is a special needs planning attorney. He is a member of the Academy of Special Needs Planners, a national organization comprised of professionals serving the special needs community. His practice focuses on estate planning for families who have dependents with special needs. Matt assists families with planning for the future and protecting their special loved ones.


Matt’s practice includes preparation of estate documents, assisting families with Guardianship-related issues, and advising families on government benefits, including Social Security and Medicaid. Matt has presented on topics important to the special needs community for various parent groups, non-profit organizations, and conferences.


Matt’s personal background gives him an understanding of the unique challenges faced by families who have a dependent with special needs. Matt’s sister, Rose, has Down syndrome and his aunt, Donna, has an intellectual disability. Matt is actively involved with several organizations serving the special needs community, including coaching Special Olympics and serving as current Board Treasurer for Down Syndrome of Louisville.


For more information, Matt may be reached at: (502) 398-5721, (email) matthew@goodinspecialneedsplanning.com, or (website) www.goodinspecialneedsplanning.com. 



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