Is a Power of Attorney Right for a Person with an Intellectual or Developmental Disability?
Not every person with an intellectual or developmental disability is unable to make health care and/or financial decisions. The impact and spectrum of disabilities varies widely from person to person and diagnosis to diagnosis. One person with Down Syndrome may be capable of decision-making while another may not, just as a person with autism may be capable of decision-making while a person with cerebral palsy may not. Determining whether a person has “decisional capacity” can be difficult, but if the person is able to make their own decisions, a Power of Attorney allows them to have independence and autonomy and also provides them a level of protection in the least restrictive way possible.
I firmly believe that all adults should have a health care and financial Power of Attorney (POA) in place so that they have a designated agent who can make decisions for them if they are unable to do so, whether it be temporarily or long-term. A well-drafted and effective POA can mean that a trusted family member or friend has the legal authority to assist the person with decision-making when necessary and does not require intervention and oversight by the court. Who wants to have the court involved in their life if they do not need to?
The same is true for people with developmental or intellectual disabilities. Once a person turns 18, they are an adult in the eyes of the law and are presumed competent to make their own decisions. That means Mom and Dad no longer have the right to direct medical care, receive information from health care providers, or manage their child’s finances or benefits.
Often, there is an assumption that if a child has a disability or is in special education, they automatically need to have a guardianship established. This is not only false, but could impose far more restrictions upon the person than they actually need.
If you have a child with a disability who is turning 18 or if you have an adult family member with a disability, talk with an experienced attorney about whether your child or family member has decisional capacity and if so, help facilitate their ability to execute a Power of Attorney for healthcare and financial matters. That way if they do need help in these areas, they will have a trusted family member or friend to turn to for assistance.