Individuals with special needs and disabilities are supported and empowered by the Americans with Disabilities Act (ADA). More options for individuals and families who support them to live as independently as possible are available. Multiple options are available to create and amend legal frameworks to best serve persons with special needs. Requirements continue to change, and laws and resources will differ between states.
The most traditional and well-known option to support a person with special needs is guardianship. Guardianship types may vary from state to state, and your planning must account for the state where the individual with special needs resides. There are several commonly implemented forms of guardianship, including:
- Guardian of the person – This person is responsible for ensuring their ward with special needs receives proper care, supervision, housing, education, vocational planning, medical care, and help with end-of-life decisions.
- Guardian of the estate or conservatorship – This person manages finances for income sources other than benefits checks. They have a fiduciary responsibility to handle financial resources properly to preserve government benefits eligibility, providing an annual accounting of the funds to the court and tax filings.
- Limited guardianship – This person operates in a narrow range of decision-making, like medical treatment. The person with special needs continues to make decisions in all other areas of their life. This guardianship permits targeted help while allowing the person with special needs less restrictive oversight.
- Temporary guardianship – A court may appoint a temporary guardian in an emergency when immediate decision-making is required. Temporary appointments may occur for up to 90 days when a requested permanent guardianship is under court review.
- Successor guardianship – Typically, a successor guardian is identified in legal documents created by the parent of a child with special needs. A successor eases the transition for the next guardian to step in.
Careful consideration and appropriate selection of strategies for guardianship alternatives vary with each individual’s case. An attorney with expertise in special needs and options can help create a plan that provides targeted support while still respecting the person’s capabilities for autonomy as much as possible.
In particular, legal options for guardianship include:
- Supported Decision-Making (SDM)
- Healthcare proxy
- Power of attorney
- Physician Orders for Life-Sustaining Treatment (POLST)
- Medical Orders for Life-Sustaining Treatment (MOLST)
Supported Decision-Making (SDM)
The decision-making capabilities of people with special needs are often discounted, and full guardianship is imposed, virtually removing all legal rights to make choices and decisions regarding their life. However, the legal implementation of Supported Decision-Making restores the rights of those individuals with special needs who can make decisions with the proper support and services. This less restrictive decision-making option removes the need for surrogate decision-making and restores autonomy.
The American Bar Association (ABA) identifies SDM as a cutting-edge alternative to the more traditional guardianship, placing the person with special needs at the center of the decision-making process. It relies on consultation with family, friends, community organizations, social services, and other appropriate sources to evaluate the pros and cons of a decision. The result is formal and written supported decision-making agreements that are evaluated before a final decision is made.
If a person with special needs loses the capacity for healthcare decisions, a healthcare proxy allows a named person to make decisions for them. Healthcare proxies may also be referred to as durable healthcare powers of attorney and healthcare surrogates. Signatures on these documents need to be witnessed by two unrelated and uninterested individuals.
Healthcare proxies only take effect when a physician determines the person with special needs is incapable of making healthcare decisions. When individuals with special needs have the competency, they can identify the person they prefer to act on their behalf in future healthcare decision-making.
In addition to a healthcare proxy, and sometimes combined into one document, is a living will. A living will document states a patient’s preferences regarding their medical care and end-of-life circumstances. The living will guides the healthcare proxy and healthcare providers.
Physician and Medical Orders for Life-Sustaining Treatment
These documents are medical orders that patients discuss with their attorney and doctor before implementing. A POLST or MOLST is referred to differently depending on your state. The patient, the patient’s agent, and the physician will complete the document dealing with the particular medical condition the client is facing. It contains specific orders such as do not resuscitate (DNR), do not intubate, and other treatment types the patient may prefer to try under the circumstances.
A lawyer can discuss these documents with a client but can’t create them as they are a physician’s order, requiring a physician’s signature and access to the patient’s medical chart. The order is for patients facing terminal prognoses or one that will diminish their cognitive abilities. Typically, the conversation introducing this document will begin with an attorney, and when the client/patient understands its ramifications, the process segues to the physician.
A special needs attorney may also suggest your healthcare proxy and other relevant loved ones receive HIPAA authorization which permits access to protected medical information whether you have lost capacity or not.
Power of Attorney
Similar to a healthcare proxy (agent or attorney-in-fact), a general power of attorney (power of attorney for property or financial management) can have broad authority for the financial management of income and assets of a person with special needs.
Like a healthcare proxy, the agent makes decisions, sometimes immediately or only when the individual loses capacity. These decisions focus on various property and financial transactions. Actions may include:
- Applying for government benefits
- Selling property
- Changing investments
- Signing income tax returns
Supporting and empowering individuals with special needs fosters feelings of independence and dignity that have far-reaching effects on that person’s overall well-being. Children with special needs require guidance and assistance when young. Yet, when they turn 18, they are legal adults, and these childhood legal protections dissolve. Many people with special needs can navigate adult rights and responsibilities but may need some help handling the more complex decisions. Speaking to a special needs attorney can help you transition a loved one from childhood into adult decision-making while maintaining their dignity and providing beneficial guidance.
Contact our office at (718) 979-7477 to set up a time to discuss planning opportunities.