What Happens When a Disabled Child Turns 18 in NJ?
Becoming a legal adult is a big step for everyone. But if you’re the parent of a disabled child, the transition can be complicated. How will caring for your child change? What steps will need to be taken to ensure a productive future and his or her wellbeing? A knowledgeable New Jersey adult child guardianship lawyer at The Susan Clark Law Group can answer these questions for you.
Our Freehold law firm understands the complex decisions that must be made as a disabled child gains legal independence. We can meet with you and your child to discuss these needs and help make choices that work for everyone. This can be a highly emotional time for families. Getting guidance from a trusted attorney can ensure that you know your legal options and agree on the best ways to proceed.
We’re standing by to help. Call or contact us today for a free consultation.
What is Informed Consent?
Informed consent means that a person has the right to make decisions about his or her own life. It applies in many settings. For example, a doctor cannot initiate or change a course of medical treatment without obtaining informed consent from the patient. An accountant may require informed consent before accessing a client’s financial records.
But how does informed consent apply to adults with disabilities? It depends. Informed consent cannot be given if the person doesn’t have the capacity to understand what they are consenting to or what the consequences may be. When a disabled child is a minor, parents automatically have the right to provide informed consent. But once the child turns 18, informed consent shifts into the hands of the child — even though that child may have developmental or mental impairments that make them incapable of making important life decisions.
It’s essential to understand how dramatic the change is. After age 18, parents can no longer:
- Make medical decisions for their child
- Decide where or how their child should live
- Sign documents on behalf of the child
- Receive medical updates from doctors without written permission from the child
Naturally, the shift of informed consent can have serious legal and medical consequences for some adults with disabilities. New Jersey law provides several avenues that parents can take to protect their children under these circumstances.
What Will Change When My Disabled Child Turns 18?
Parents of children with disabilities will need legal permission in order to continue making decisions for them after age 18. Factors to consider before taking official steps to establish a certain degree of legal authority over a disabled adult child include:
- Can the child communicate needs and wants effectively?
- Does the child have the capacity to understand the consequences of actions and decisions?
- Can the child perform activities of daily living such as eating, dressing, and bathing without assistance?
- Can the child obtain paid employment?
State laws require the needs and wants of a disabled adult be taken into account as much as possible for every decision made about that individual’s living conditions and medical care.
Even if the adult child is completely financially dependent on the parents and needs to reside in an assisted living facility, the parents cannot unilaterally make decisions for an individual capable of communicating their own needs and wants.
Filing for Guardianship of a Disabled Adult Child
A guardianship of an adult is a legal arrangement where one person is appointed to act on the behalf of a disabled adult. You often hear of children obtaining guardianships over their elderly parents. It’s also possible to obtain a guardianship as the parent of a disabled child.
It’s important to understand that in New Jersey, guardianships are considered an option of last resort. America was founded on every person’s right to life and liberty, and taking away that independence is something the courts take very seriously.
Once a guardianship has been arranged, the guardian is legally entitled to make decisions about the adult child’s medical care, living situation, and other aspects of the person’s life. However, state law does require that a child should be involved in making his or her decisions as much as possible.
It may also be necessary to file for conservatorship. A conservator is legally permitted to make financial decisions for a disabled adult, including decisions about their personal property, estate, and monetary affairs. The same person may be designated both a guardian and conservator, but this is not required.
In order for a guardianship and/or a conservatorship to be established for an adult, a licensed physician has to provide a written statement testifying that the adult child doesn’t have the mental capacity to make these types of decisions for themselves.
At first glance, becoming a guardian or conservator may seem like the best route to ensure that your adult child is properly cared for. But these options can have drawbacks.
For example, the designated guardian must spend considerable time making decisions for the adult child, including reporting to the court at least once a year to discuss his or her physical and mental status, living arrangements, and other matters. The court needs to be reassured that the adult child still needs a guardian and that the adult child is being cared for adequately. While most parents gladly embrace this duty, you should know that it is a big responsibility.
Similarly, a conservator must keep excellent records of the adult child’s financial affairs and report this information annually to the local Commissioner of Accounts. Some parents may feel better placing the financial arrangements in the hands of another family member, friend, attorney, or other conservator.
Powers of Attorney for a Disabled Child
Many disabled adult children do not need a full guardianship arrangement at age 18. They may become upset about the prospect of losing all of their independence. For example, a disabled adult child who can engage in gainful employment and live alone with minimal assistance likely does not need a guardian. For these cases, powers of attorney may be the best option.
There are two types of power of attorney arrangements that may be appropriate:
- Health care power of attorney: In this arrangement, the adult child gives a person (usually a parent) the legal authority to make decisions about his or her medical care. This is an excellent option for an adult child who can generally live independently, but doesn’t quite have the capacity to make complex decisions about medical care or fully understand what the healthcare provider has to say about their physical and mental status.
- General power of attorney: A general power of attorney allows the designated parent to make decisions about financial and administrative affairs on behalf of the adult child.
Setting up powers of attorney is an easier process than establishing a guardianship or conservatorship. The adult child simply has to agree to it and sign a document after turning 18. However, a power of attorney cannot be established if the adult child doesn’t have the capacity to understand what it means and to make an informed decision to sign one.
Generally, the attorney will ask for a medical opinion and will need to meet with the adult child alone to determine if the adult child does have the capacity to sign a power of attorney and wants to do so.
Parents who are trying to decide between powers of attorney and guardianships definitely need to speak with an experienced lawyer about which option is best for their child. At The Susan Clark Law Group, our experienced guardianship lawyers will work with you and your child to find the best possible arrangement for you.
Supplemental Security Income (SSI) For a Disabled Adult Child
Many disabled children receive Supplemental Security Income (SSI), which helps parents afford their care. A child can qualify for SSI if they suffer from mental or physical impairments causing “marked and severe functional limitations” that are expected to continue for a year or more.
But once a child turns 18, the standard for receiving SSI changes. In order for an adult child to receive SSI, the law says that the adult must have an impairment that prevents them from engaging in any type of paid employment. Many disabled adults are capable of performing some type of work and thus lose their SSI payment as soon as they turn 18, unless they are attending school or participating in a vocational training program that began prior to their 18th birthday.
On the other hand, adult children who are incapable of working but did not qualify for SSI before age 18 may become eligible for benefits once they become a legal adult. This is because prior to age 18, the Social Security Administration took the parents’ income and financial situation into account when making SSI decisions. After age 18, only the adult child’s financial situation is considered. Since he or she doesn’t have an income, it is much easier to qualify for SSI.
When Should I Hire a Lawyer?
Contacting a lawyer before your child turns 18 is the best way to prepare for the changes that come with adulthood. There are many different ways to arrange your child’s legal affairs, so it’s essential to sit down with a special needs lawyer ahead of time to begin considering your options. Having a general plan early on can help make implementing it easier once the time comes.
In order to be accepted by doctors and the courts, the necessary paperwork for guardianship and/or conservatorship needs to be prepared and filed by a qualified attorney. The legal process should be started at least six months before the child’s 18th birthday so the necessary statements and paperwork can be collected, drawn up, and presented to the court on time.
What Your Disabled Child Will Need as an Adult
Our attorneys can advise you on what will need to be done as your child reaches adulthood, such as:
- Obtaining a Social Security card
- Getting a valid state ID card
- Setting up a checking account in your child’s name
- Applying or re-applying for Supplemental Security Income
- Explaining how the New Jersey Division of Developmental Disabilities can help your child once he or she reaches age 21
- Making decisions about living arrangements for your child, whether it is renting an apartment, applying for space at an assisted living facility, or living in your home
- Ensuring that the child knows how to obtain transportation if he or she cannot drive
- Making long-term plans for what happens if you are no longer able to provide care for your child as you age
We can also discuss with you whether it would be beneficial to set up a special needs trust that will provide financial assistance to your adult child without disqualifying him or her from other disability benefits.
How Can The Susan Clark Law Group Help Me?
There are many legal options to explore when deciding how best to care for your disabled child after age 18. For years, the attorneys at The Susan Clark Law Group has helped New Jersey families prepare for the transition. We provide thoughtful, skilled advice about your options regarding guardianship, conservatorship, and powers of attorney. No family’s situation is the same, and every solution will be tailored to meet your individual needs.
Call or contact us to arrange your free consultation.