There is no â€śone size fits allâ€ť
approach that parents of a child diagnosed within the â€śautism spectrumâ€ť should
take as the child approaches their 18th birthday. The abilities and
the needs of each child are unique and should be evaluated to create the best
legal plan tailored for that childâ€™s future. When a child reaches the age of
majority and becomes a legal adult, it is an exciting and scary time for both
the parent and the child. Parents and children are excited about the new
possibilities that lie ahead and the opportunity for the child to spread their
wings and fly.
As parents, we trust that we have
created a solid foundation of ethics, morals, and decision-making skills for
our children to take with them out into the world. These same hopes and fears
are experienced by families where a loved one has Aspergerâ€™s or Autism.
I recommend to parents that before
they meet with an attorney experienced in special needs planning, they discuss with
each other their childâ€™s abilities, challenges, and limitations.
Responsibilities and Intellectual Abilities:
- What is the highest level of math the
child completed in school?
- What is the childâ€™s reading and
- What is the highest grade level
completed by the child, and how did the child perform?
- Will the child be attending college or
a vocational school?
- Will the child be employable?
- What are the childâ€™s strongest
financial related skills (i.e. maintain and balance a checkbook, read a bank
statement, handle banking transactions, make investment decisions)?
- Is the child able to correctly make
change at a store?
- If your child receives wages or Social
Security benefits, is he/she able to responsibly handle money?
- Do you think your child would be
susceptible to undue influence from others and be financially exploited?
- Could the child have a conversation
with a physician about a diagnosis (i.e. cavity) and understand the prognosis
and the possible treatment plans? Can the child give informed consent?
- Can the child live independently or does
he/she require a supervised supportive environment?
- Can the child drive a car?
- Can the child differentiate between a
safe and unsafe situation? Does the child know how to protect him/herself
(physically and emotionally)?
- Can the child learn how to vote and
appreciate the consequences of their decisions?
- Would it be appropriate for the child
to enter into a marriage?
- What is the childâ€™s ability to perform
activities of daily living by themselves (i.e. bathing, dressing, toileting,
feeding, transferring, grooming)?
exercise can make your initial meeting with an attorney effective and
efficient. I suggest to parents who call my office that they bring their child
with them to the meeting. I enjoy meeting with the child and it is an
opportunity for me to assess certain skills and level of capacity, and
determine the best course of action to recommend. Plan to meet with a Special Needs Law attorney approximately two
months before your childâ€™s 18th birthday so there is sufficient time
to explore the options.
are potentially three options the Special Needs Law attorney will discuss with
you for creating a legal plan for your childâ€™s future:
Documents: If your child is high-functioning or
has a high level of capacity, the attorney may be able to prepare legal
documents for your child to sign that creates a medical and financial
management plan. Legal â€ścapacityâ€ť means the ability to understand, reason, and to
appreciate the consequences of oneâ€™s actions. A high level of capacity is
required for financial decision-making; a lower level of capacity is required
for medical/personal care decision-making. The documents that are important for
all young adults to have are:
(a) Durable Power of Attorney: The
document identifies a trusted person(s) who has legal authority to make various
financial decisions when a person is incapacitated. For example, paying bills,
handling banking transactions, or filing a tax return.
(b) Designation of Health Care Surrogate:
The document identifies a trusted person(s) to make various medical and
residential decisions when a person is unable to give informed consent. For
example, authorize a medical procedure, authorize transfer and discharge from a
hospital or facility, or change residence.
(c) HIPAA Authorization: The document
states that the health care surrogate is authorized to access confidential
health information under the HIPAA medical privacy law.
benefits of the documents are the child chooses who to name to assist them,
they are private (not a public record), and serve as an alternative to a court-supervised
Advocate Proceeding: The goal of this court-supervised proceeding
is to have a parent or family member appointed as a Guardian Advocate to assist
and support a person with a developmental disability in making decisions. (In
Florida, Autism is considered a developmental disability.) I like this legal
option since it allows the adult child to attain their highest level of
independence possible. The adult child retains their legal rights and the
Guardian Advocate has legal authority to assist in medical and/or financial
decision-making. This may not be the appropriate option for your child if you
are concerned about financial exploitation because if the child signs a
contract, it will be binding.
is a caveat: if the child has a mental health diagnosis
in addition to the Autism or Aspergerâ€™s diagnosis, the Court may not permit you
to file a Guardian Advocate proceeding. It will depend on whether the Autism or
Aspergerâ€™s diagnosis compared to the mental health diagnosis is the primary
cause of the adult childâ€™s incapacity. For example, I recently represented a
parent of a young adult diagnosed with Aspergerâ€™s, as well as bipolar disorder.
The evidence and medical testimony established that the bipolar disorder was
the cause of the child making poor financial and personal care decisions (i.e.
not monitoring the diabetes and taking insulin, associating with untrustworthy
individuals, frivolous spending habits). Consequently, the Court would not
allow us to proceed with a Guardian Advocate proceeding and ordered that we
file for a guardianship.
The purpose of this proceeding is to appoint a legal guardian to make financial
and/or medical decisions for an adult whose ability to make decisions is affected
due to physical, cognitive, or mental incapacity. Some or all of a personâ€™s
rights are removed and delegated to the Guardian (the guardianship should be
tailored to the needs of the individual). These rights include:
(a) the right to vote
(b) the right to marry
(c) the right to contract
(d) the right to apply for government benefits
(e) the right to make medical decisions
(f) the right to determine social environment
(g) the right to determine residence
(h) sue and defend lawsuits
(i) seek or retain employment
(j) manage real or personal property
make any gift
have consulted with a Special Needs Law attorney, take the time to consider all
options carefully. Educating yourself enables you to make an informed decision
that is in your childâ€™s best interest.