From Merriam Webster Online
Main Entry: du·ra·ble
Function: adjective
able to exist for a long time without significant deterioration; also : designed to be durable <durable goods>

In the previous article on Advanced Directives I made reference to putting Katherine into guardianship as she reaches the age of 18. While that is certainly one option that I may have to avail myself of, in most states another option available for me to consider would be a Durable Power of Attorney

First off there are many types of Power of Attorney (POA). All of these legal documents branch off from the premise that one person is granting another person (frequently referred to as their agent or attorney-in-fact) to act on their behalf in a legally binding capacity. The two major types are

  • Limited POA – grants either specific powers (power to close a specific real estate deal) or broader powers in a limited period of time (to act on a persons behalf during their travel out of state/country for a period of two weeks)
  • Durable POA – grants powers (typically broad and financial in nature) for a person to act on your behalf. The difference is with a durable POA the document continues in effect even if the person granting the powers initially becomes incapacitated.

Obviously as with any legal document there are 100’s of shades of gray from here but this will give you a good foundation to move forward on.

Pretty much anyone who has property (house, car, etc) or income can benefit from having this document as a part of their estate plan. Typically an estate plan would be set up with a Durable Power of Attorney. You put a Durable POA in an estate plan to protect and provide for your loved ones financially and legally in the event you should ever become incapacitated due to illness or injury. With this in place, any number of issues can be addressed by your agent on your behalf. For my Durable POA (and I’m sure for many if not most married couples) my husband has been named as my POA. This document gives him the ability to take care of any number of transactions however the one that gives me the most comfort on a daily basis is the provision “To Provide Support for Dependents”.

My husband is not Katherine’s biological father. Because of this, legally he can not make medical, educational, or legal decisions on her behalf….until this little document got signed. This document protects Katherine if I go out of state for any reason (which I have done from time to time). He can get her either maintenance or emergent medical care, he can deal with a situation at the school should it arise. It also allows him to do things on her behalf should something more ominous happen and I was unable to attend to her needs. For my both my children it means that basically whatever my husband needs to do to keep the day to day things going like paying the mortgage, hire help to care for the children, paying for my medical needs (after an injury or illness), filing insurance claims, applying for government benefits, by selling stocks, securities, real property the list goes on and on he has the power to do so – all because of this one document.

Alternative to Guardianship

As I talked about briefly in the first paragraph, a Durable Power of Attorney may be a viable alternative to guardianship. The Academy of Special Needs Planners writes:

Parents of children with special needs must be concerned with ensuring that medical and financial decisions will continue to be made in the child’s best interest once the child reaches age 18 – the age of legal capacity. In most states, once a child reaches age 18, he is presumed to have decision-making capacity and the parents’ legal authority ends. Parents of children with special needs have various options, each with advantages and disadvantages depending on the situation, to establish a new legal authority to continue making important decisions for the child.

There are ways to avoid the time and expense of a guardianship or conservatorship process while accomplishing the same basic goals. If the person with special needs has sufficient capacity to understand, he can appoint an agent using a durable power of attorney over medical or financial matters, or both. Depending on the type of power of attorney, the agent will have the authority to make financial and property decisions or medical and personal decisions on behalf of the adult child, all without court intervention or direct oversight.

If the adult child receives either Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) and cannot manage the income, the Social Security Administration allows another person to receive the funds to use on the child’s behalf. However this option also requires the filing of an annual report showing how the money was used.

In reading the way it is described here it is unlikely that a Power of Attorney will actually work for Katherine specifically but there are many for whom this would be a far more preferable way of handling these matters. It would maximize the independence of an adult child who was higher functioning but needed assistance and/or backup. I know that one of my major concerns about which way to proceed (Durable POA vs. Guardianship) is protecting as much of Katherine’s independence and dignity in the process.

The Durable Power of Attorney might be an excellent option also for a family with an adult child with mental illness. At times of instability and crisis, the POA would not negate their ability to assist the child with financial and other issues because the nature of a Durable Power of Attorney is meant to continue regardless of incapacity – mental or physical. Certainly during periods where an adult child is stable and medication compliant there might be no need for the powers contained within but for instance during a manic phase of someone with bipolar disorder the Agent for the POA could potentially use those powers to protect assets from being spent off in an out of control shopping spree.

As you can see used appropriately the Durable Power of Attorney can be an incredibly valuable tool. You no doubt can also see the possibility for problems which is why as with any document of this nature which places a high degree of trust in the hands of another you should be thoughtful with your choice of designee.

Can you see how it could benefit you and your child? Have you had occasion to use a Power of Attorney rather than seeking Guardianship or Conservatorship? Tell us about it!

(This is the third in a series of articles that The Special Parent is doing on legal documents you should make sure you have to protect your special needs child. The information contained within this series is for general informational purposes only and is strictly the opinion of the author who is not a legal practitioner. It is not intended in any way to provide or offer legal advice. To obtain legal advice, please consult with your attorney or a qualified legal representative.)

Related posts:

  1. Directives, Quinlan, & Schaivo
  2. Reorganization part 2: Must have stayed at a Holiday Inn Express last night