One of the most common questions I get from parents of teenagers and young adults with special needs is whether they should do a guardianship or a power of attorney. Powers of attorney are frequently talked about as alternatives to guardianship, but in reality, it’s not that black and white. For elderly people, a power of attorney can head off the need for a guardianship. But for people with developmental disabilities, it’s a very different story.
A guardian is a person appointed by a court to care for an incapacitated person. The legal description of incapacity in Texas law is: An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs. Other states will have slightly different, but similar definitions.
A power of attorney, on the other hand, is an appointment by an individual of someone to handle that person’s affairs on their behalf. The person signing the power of attorney must NOT be incapacitated, or the power of attorney appointment is not valid. In other words, the person signing the power of attorney must be able to fully understand the nature of the document and its consequences. A durable power of attorney means that once you sign it, it will continue to be effective until you revoke it, even if you subsequently become incapacitated.
Powers of attorney are extremely useful in avoiding the need for a guardian in elderly people who develop dementia or other conditions that cause them to be legally incapacitated. As long as they have signed a durable power of attorney before the incapacitating condition occurred, the person they named in the power of attorney will be able to handle their financial and other affairs without having to go to court and seek guardianship.
Although there are many reasons to have a power of attorney, one of the most important ones is so that in case you become disabled later in life, someone will be able to take care of you without anyone having to go to court and spend the time and money to get a guardianship.
For children with developmental disabilities, that’s not a possibility. Unlike an adult who becomes disabled later in life, a child who is born with or who is diagnosed with a developmental disability and who meets the legal definition of incapacity, has never had a time when they were not incapacitated. Therefore, there is never a time when they have the capacity to sign a power of attorney. There was never an in case for them. For children with a developmental disability who cannot care for themselves when they turn 18, guardianship is the only option.
Of course, not all young adults with a developmental disability are unable to understand and handle their own care. If they are not legally incapacitated, then a power of attorney is completely appropriate so that they can name someone that they want to be able to help them with their affairs.
The decision whether to seek guardianship or a power of attorney is not an either/or situation for a young person with a developmental disability. If they are incapacitated, they cannot legally create a power of attorney. And if they are not incapacitated, then they are not in need of a guardian. The question is not whether to have a guardian or a power of attorney, but rather the question is whether they are legally incapacitated or not.
What you do for your child when they turn 18 is dependent on your child’s individual abilities and level of functioning. If it is not clear, begin discussing this with your child’s doctor’s in the year prior to their 18th birthday.