Understanding the difference between a power of attorney and a guardianship is critical. When children with special needs approach age 18, parents must realize that they will soon become adults, at least as far as the law is concerned. Once your child with special needs becomes a legal adult, you will no longer have the authority to make medical, financial, or legal decisions on their behalf. You also will be unable to access their medical records or bank accounts. If children with special needs cannot handle these responsibilities without assistance, or at all, parents must take steps to be granted the legal authority to continue assisting their children and acting on their behalf after they turn 18.

Power of Attorney

A power of attorney is a legal document that allows you to act on your adult child’s behalf. If your adult child agrees, they can sign various power of attorney documents that allow you to communicate with their medical providers, school officials, employers, banks, and federal and state government agencies. A power of attorney is one of the least restrictive ways for you to continue to assist your adult child with special needs in making decisions. While you can act on behalf of your adult child and assist in decision-making as needed, they retain the ability to make independent decisions.

Various types of powers of attorney exist for different uses. For instance, separate powers of attorney typically exist for decisions concerning healthcare and property. The Social Security Administration has its power of attorney form that individuals must complete to allow a parent access to their Social Security information. The Illinois Department of Human Services also has a power of attorney form for handling Medicaid-related issues. Therefore, adult children with special needs who wish to give their parents power of attorney may need to sign several forms to allow their parents to access all necessary records and information.

In some situations, a power of attorney may not be the best choice or is not an available option. For instance, an adult child must be legally competent to grant a parent or parents a power of attorney. In other words, the child must know and understand that they are giving the parent the right to make decisions on their behalf. Some adult children may be unable to consent to a power of attorney, so a more restrictive form of legal authority would be necessary.

Furthermore, some adult children with special needs may be unable to properly manage their money on their own or easily be taken advantage of by others. In this situation, a power of attorney may be insufficient to protect the adult child, and more restrictive means may be needed.

Guardianships

If your adult child with special needs is not legally competent to consent to you having power of attorney, then you will have to seek a guardianship order from the court. A guardianship is a far more restrictive form of authority over another person, as it takes away their ability to make decisions on their own behalf. However, when individuals with special needs cannot make financial, legal, or healthcare decisions on their own or need protection, filing for guardianship may be necessary.

Under 755 ILCS 5/11a-1, parents of adult children with special needs can obtain two types of guardianships: limited and plenary or full guardianships. While limited guardianship only gives a parent the legal ability to make decisions about a few areas listed in the court order, plenary guardianship allows a parent to make all decisions on an adult child’s behalf.

A parent may pursue limited guardianship to safeguard the adult child’s ability to drive. A plenary guardianship bars the individual from having a driver’s license. However, if a parent needs to make decisions for the adult child in more than a few areas, the court will likely require a plenary rather than a limited guardianship.

Contact Us Today to Learn More About Our Legal Services

Rubin Law is the only Illinois law firm to dedicate itself exclusively to providing compassionate legal services for children and adults with special needs. We offer unique legal and future planning techniques to meet your family’s individual needs.

Call us today at 866-TO-RUBIN or email us at email@rubinlaw.com to learn more about the services we can offer you and your family.