Individual rights that we generally take for granted as Americans may be limited or restricted in some ways when it comes to an adult child with special needs. Therefore, as children with special needs become adults, some of their rights may be limited under state or federal law depending on their legal capacity and whether their parents or others have legal guardianship of them.
Driving
A driver’s license gives an individual a certain degree of independence to care for oneself by running errands, going back and forth to jobs and activities, and not relying on others for transportation. However, under Illinois law, obtaining a driver’s license is not always an option for people with special needs. Parents or other family members considering seeking guardianships over adult children with special needs should be aware that guardianships can substantially impact their ability to hold a driver’s license and operate a motor vehicle.
Illinois law provides for two main types of guardianships: plenary and limited guardianship. Under plenary guardianships, guardians make all personal, financial, and medical decisions for individuals with special needs. These individuals may not hold a driver’s license. Even if they already have one, it automatically becomes void once the plenary guardianship goes into effect.
In contrast, individuals subject to a limited guardianship can hold driver’s licenses. A limited guardianship authorizes a guardian to take only limited actions on behalf of the ward or a person with special needs. For instance, a limited guardianship may permit the guardian to make only medical decisions for the person with special needs. However, suppose the limited guardianship allows the guardian authority in multiple areas. In that case, the court may be reluctant to grant the limited guardianship and require that the guardian obtain a plenary guardianship instead, disqualifying the person from having a license.
Furthermore, even if individuals with special needs are not subject to guardianships, they must disclose any mental and/or physical conditions that may impact their ability to drive when they apply for a driver’s license. The Secretary of State then requires these individuals to submit medical reports about those mental and/or physical conditions from their doctors. Suppose a report raises issues about an individual’s ability to drive safely. In that case, the Illinois Medical Advisory Board will review the report and license application and determine whether to grant that license and, if so, whether to place any restrictions on that license. Potential restrictions, listed on a medical restriction card held by the licensee, include using hand controls to operate the vehicle or remaining under a doctor’s care to keep the license.
Voting
The federal Voting Rights Act permits states to set their own restrictions on voting, including denying a person the right to vote “by reason . . . of mental incapacity.” Illinois has no specific law that denies a person the right to vote based on mental incapacity. Therefore, the only eligibility requirements for people to vote in Illinois are to meet all age, citizenship, and residency requirements, register to vote, and understand the voting process. No reading, writing, or mental capacity tests are required to be able to vote. Being subject to a guardianship or having special needs does not categorically prevent a person from voting.
In Illinois, guardians should discuss the voting process with their wards who have special needs to ensure they understand the process and how to navigate it independently. Furthermore, individuals with special needs have the right to appropriate access to voting systems that allow them to vote. The Help America Vote Act of 2022 requires that every voting precinct have a voting machine accessible to voters with special needs. States that currently do not have these accommodations can apply for grants through the federal government to improve their accessibility for individuals with special needs and train poll workers to accommodate them. Likewise, other federal laws require that state voting laws and rules apply legally to all voters and that states do not discriminate against voters with special needs. While these rights to special accommodations are guaranteed under federal law, guardians still should take steps to ensure that their wards have the access to which they are entitled to allow them to vote.
Making Medical Decisions
Once children turn 18, regardless of their special needs, they become legal adults and can make medical decisions themselves. Parents of special needs children, even if they are accustomed to making medical decisions for their children, no longer have that legal authority. While some adults with special needs can make medical decisions on their own, others need support in doing so, and others have no legal capacity to do so.
If adult children with special needs are legally competent, they can sign powers of attorney that allow their parents to speak with their medical providers, access their medical records, and make medical decisions. A power of attorney permits an adult child to continue to make independent medical decisions but also allows their parent(s) to make medical decisions on their behalf. Again, an adult child signing a power of attorney must know and understand what they are signing, so a power of attorney may not be suitable or possible for all individuals with special needs.
When adult children with special needs are not legally competent to sign powers of attorney, their parents or the appropriate relatives must obtain legal guardianships to make medical decisions for them. Limited guardianships give parents only selected forms of authority over the individual with special needs, such as the right to make medical decisions. In contrast, plenary guardianships give parents complete legal authority over all decision-making for the adult with special needs.
Engaging in Dating Relationships and Marrying
As with adult children, parents sometimes disapprove of dating relationships and marriage plans that children make for various reasons. Parents’ ability to control relationships and marriage greatly depends on the legal competency of the individuals with special needs. For instance, individuals generally must be legally competent to enter a civil contract in Illinois to be eligible to marry. If an adult with special needs is subject to a plenary guardianship because they are legally incompetent, then they may not legally marry unless their guardian authorizes them to do so.
A change from single to married status for individuals with special needs can also have significant repercussions for the government benefits that they receive. For example, some adult children with special needs have “disabled adult child” (DAC) status, which enables them to receive different benefits from the Social Security Administration. DAC benefits are based on a parent’s Social Security earnings record, which often leads to a greater amount of either SSI or SSDI benefits for adult children with disabilities. However, adults cannot have DAC status unless they remain unmarried. Therefore, marriage could result in an adult with special needs receiving a substantial decrease in Social Security benefits, which can create a financial hardship.
Call Rubin Law Today to See How We Can Help
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.
