Your Special Needs Child is Turning 18
A person’s 18th birthday is an important milestone. For many, it represents the age of adulthood: Freedom! Independence! Eligibility to vote, enter into contracts, move out and begin to make one’s way in the world.
For parents of Special Needs individuals, it is equally important, but for different reasons. It is essential to plan and prepare for your Special Needs child’s 18th birthday well before that event.
Under California law, all individuals, regardless of capacity, will be treated as adults on their 18th birthday. That means they can sign a contract (whether or not they understand it) and be legally bound to its terms. This includes education contracts, such as Individualized Education Plans. Your 18-year-old Special Needs child’s signature on an IEP could erase years of effort and advocacy to obtain educational benefits to which they are entitled, unless you obtain the authority to assist with those decisions.
They are now the owners of their protected health care information under the HIPAA laws, and, under those same laws their doctors are prohibited from disclosing that information to third parties (even parents) without written or oral permission from the individual. If your child is able to express his or her preferences, you, as parent, may still be able to assist your child. However, if your child is non-verbal or has limited understanding, those laws intended to protect your child will also prevent you from assisting your child.
Depending upon your county of residence and the needs of your child, you will need to begin preparing at least six months prior to your child’s 18th birthday (possibly longer) to ensure the right protections are in place for your child.
Your specific plan will be informed and guided by your child’s individual needs. Higher functioning young adults may be able to manage on their own relatively well. Execution of powers of attorney for financial and health care decisions by the individual, combined with supported decision making, may be sufficient to enable your child to remain safe and protected. Powers of attorney and supported decision-making agreements are legal documents and cannot be signed until on or after your child’s 18th birthday.
Individuals with developmental disabilities, certain intellectual disabilities and/or who may be Regional Center clients may benefit from a limited conservatorship.
A limited conservatorship is a legal process by which the court authorizes an individual (usually a parent or sibling) to make decisions on behalf of the person who needs to be protected. With a limited conservatorship, the conservator’s decision-making authority is limited to the following seven specific powers (although not all powers are granted for every limited conservatorship):
Authority to fix the residence of the conservatee
To control the conservatee’s ability to enter into contracts
Access to the conservatee’s confidential papers and information
The right to make medical decisions on behalf of the conservatee
The ability to make education decisions on behalf of the conservatee
Controlling the conservatee’s social and sexual contacts
Controlling the conservatee’s right to marry
When petitioning for a limited conservatorship, parents must provide the court with the necessary facts to demonstrate the need for each of the above powers. A court may grant some, but not all, of the requested powers. Most commonly, courts will grant the first five powers. Compelling evidence is needed before a court will issue powers to control a conservatee’s social and sexual contacts, or the right to marry.
On or after your child’s 18th birthday, you should also apply for SSI – Supplemental Security Income – on behalf of your child. Applications can be submitted in person at the Social Security Office, or online. In either case, we recommend parents begin gathering the information needed for the application ahead of time in order to submit completed documents on or just after your child’s 18th birthday. It may take the Social Security Administration several months to make a determination regarding your child’s benefits, but when the award is granted, it is retroactive to the date the application was submitted.
The Supplemental Security Income (SSI) program provides monthly payments to adults and children with a disability or blindness who have income and resources below specific financial limits. Prior to your child’s 18th birthday, eligibility is based on his or her parents’ income and resources. Once your child turns 18, parents’ income and resources no longer apply. Since most Special Needs individuals are unable to work, they will likely meet the income and resource tests. The SSI benefit rate can be as much as $914 per month. California adds an additional benefit, making the total approximately $1,100 per month. SSI rules are complicated. Benefits will be reduced if your child has a part-time job, or if food or shelter is provided to your child for free. Benefits will be reduced based on a “resource” test (how much money is kept in your child’s bank account). Careful planning is needed to maximize your child’s benefits. If your child has money left at the end of a month, consider depositing those funds into a Cal-ABLE account. Funds held in a Cal-ABLE account do not count as a resource for SSI purposes, unless the account exceeds $100,000. These funds can be used for many eligible (“qualifying”) expenses for your Special Needs child, including food and shelter.
Qualifying for SSI also means your child automatically qualifies for Medi-Cal benefits. Even if your child has other health insurance coverage under a parent’s policy, qualifying for Medi-Cal means your child will also be eligible for in-Home Supportive Services (IHSS). This benefit provides payment for at home care for your Special Needs child, and can even mean a parent who stays home to care for your child can receive payment for doing so.
If your Special Needs child will be turning 18 within the next 12 months, contact Senior Attorney, Terri L. Easlon at DROBNY LAW OFFICES, INC., to discuss your child’s needs and develop a plan to obtain resources and protect your child well into the future.
This testimonial or endorsement does not constitute a guarantee, warranty or prediction regarding the outcome of your legal matter.