Parents tend to dismiss the 18th birthdays of their children as nothing too special. They were able to get their driver's licenses at 16 and they can't legally drink alcohol until they turn 21. So that 18th birthday often gets ignored in favor of celebrating a high school graduation and heading off to college.
But Arlington Heights attorney James Siebert cautions that you ignore that big day at your own peril because that is when your child legally becomes an adult. So, unless you think ahead and get some key documents drawn up, your child might have no one but a judge in a guardianship court to oversee their care if they become ill or seriously injured and are unable to speak for themselves.
Privacy laws can prevent parents from getting the necessary medical information or speaking with the doctor, let alone making medical decisions for their adult children. So Siebert urges the parents of graduating seniors and those turning 18 to find an attorney to help their child prepare a Durable Powers of Attorney for Health Care with appropriate HIPPA provisions and a Durable Powers of Attorney for Property to ensure that they have the legal right to obtain information and make decisions for their child if their child becomes incapacitated.
"Without these documents in place, parents could be helpless spectators of the child's care if they are incapacitated and unable to speak for themselves," Siebert explained.
In addition, he recommends that adult children keep an ICE (in case of emergency) card in their wallet which lists the names of all approved emergency contacts, health insurance information and all known allergies. This information should also be stored in your cell phone under the name ICE. This will provide the necessary information so that parents can be contacted should something happen to their child.
"In most states, once a child turns 18 or is otherwise emancipated, he or she is considered a legal adult and the parent can no longer make decisions for him or her without express legal authority," Siebert explained. "If the child is incapacitated, the doctors frequently will not discuss the child's condition or discuss health decisions because of HIPPA privacy laws. In Illinois, express legal authority is obtained through durable powers of attorney, a court order or, in certain medical situations, under the health care surrogacy law."
While the Illinois Health Care Surrogate Act offers families an alternative to either a health care power of attorney or a court proceeding, Siebert said that a durable power of attorney will provide you with more control and flexibility in making decisions about your medical treatment. The Health Care Surrogate Act is for cases where a person has a qualifying condition and is unable to make his or her own health care decisions and does not have a living will, health care power of attorney, or mental health treatment preference declaration or legal guardian. In such cases, the act can allow family members and other individuals based upon an order of preference to make medical treatment decisions, including decisions whether to forgo life support. While this law is an important tool it is not a substitute for a durable power of attorney because, for instance, it cannot be used outside of Illinois. Therefore, it would not apply when a child leaves the state for school or to simply travel. In addition, many doctors and hospitals are unfamiliar with the act and do not enforce it.
"If you don't have a durable power of attorney, and the Health Care Surrogate Act does not apply or is inappropriate, then you may end up in court spending thousands trying to get guardianship for the ill teen or young adult. If the incapacitation is long-term, and a guardianship proceeding is necessary, the court will stay involved, making important decisions for your child during that time, even if the decision is not one you as the parent would make or want," Siebert explained.
The other power of attorney to consider is the one for property because unless you get this, you have no access to the young adult's financial accounts in order to pay doctor and hospital bills. This is particularly important when the young person is earning his or her own living and is self-sufficient.
"When you have a durable power of attorney for property, you become the young adult's "agent" and have access to their money to pay credit card bills and other debts, but you do not become responsible for their debts," he said. That is important so that you do not become personally responsible for large hospital or skilled care bills.
Keep in mind, Siebert added, the importance of having these documents drafted by an attorney so that all eventualities are covered. Each state has its own form and laws, so the powers of attorney should indicate that it is intended to be valid in all states and countries of the world and it must also waive HIPPA privacy rules for the person with the POA.
"You spend a few hundred dollars to have the documents drawn up and it allows you to choose who you want to make decisions for you if you can't make them for yourself," he explained. "In fact, I advocate that parents make these documents part of their child's 18th birthday present."
If your 18-year-old child has special needs, the considerations are a bit different. If that child lacks decision-making capacity, he or she will be unable to execute a durable powers of attorney so the parent will have to initiate guardianship proceedings.
When seeking guardianship, it is not uncommon for both parents to be appointed co-guardians, Siebert stated. A standby guardian should also be named in case the guardian(s) are incapacitated. The standby guardian ultimately will need to be formally appointed by the court, however he or she is able to step in and act as guardian for the special needs child during that difficult transition when the parent can no longer assist the child due to incapacity or death.
The parent also needs to contact an attorney who practices Social Security disability law. The special needs child may be entitled to benefits prior to the age of 18 and may also be entitled to benefits after age 18. This is very important because those funds could be that child's only source of income in the future. The provisions concerning Social Security Disability for Special Needs children are complex. Hiring an attorney who practices Social Security disability law is essential and makes good economic sense as well. In addition, the attorney will be paid by the Social Security Administration if the petition is ultimately successful.
It is paramount, Siebert said, that parents of children with special needs have an estate plan.
"If you don't put together your own plan, you are placing your child's future benefits at risk," he explained.
The next thing to remember when assembling your estate plan, he continued, is that, except in very limited circumstances, you should not leave anything directly to your special needs child, but instead to a supplemental needs trust established by an attorney for your child's benefit. Otherwise it could make the child ineligible for benefits such as Medicaid.
Finally, parents must use their Last Will and Testament to choose a guardian for the child and not leave this decision up to the court.