When you are the caregiver of a loved one with special needs, there are a number of legal documents that you should have in place to help you along the way. Individuals with developmental disabilities will need a varying degree of assistance and advocates depending on their level of independence. Many people with developmental disabilities will need some level of support in some areas of their lives. This article outlines what caregivers need to have in place, the documents an individual with developmental disabilities may have to ensure they have the support they need, and what to do if these documents aren’t in place.
For Caregivers
The Caregiver’s Estate Plan
Before we address the documents an individual can use to ensure caregivers are able to provide the necessary levels of support, let’s review the documents a caregiver needs to have in place in the event something happens to them. It is common that a caregiver is the parent of an individual with special needs, and under Maryland law if a parent dies without a will your children will directly inherit money and other assets. This could cause a problem if your child receives government benefits and receives an inheritance. In that situation it is likely that your loved one will lose their benefits and will need to use their inheritance for costs of daily living or the inheritance may be claimed by the state to cover the cost of services your loved one has received. By ensuring that you have an estate plan in place you can control how your special needs child receives their inheritance and ensure that they don’t lose their benefits or their inheritance.
Special Needs Trusts
One of the ways your estate plan may provide for your special needs child is through a Special Needs Trust. A Special Needs Trust is used to provide supplemental benefits to a disabled beneficiary. If your loved one is receiving Supplemental Security Income or Medicaid benefits they are limited in the amount of assets they may have. The assets in a Special Needs Trust are not counted as the beneficiary’s assets, but can be used to supplement the funds received through government assistance. A Special Needs Trust can be created through the caregivers estate plan or can be created by another loved one.
For Individuals With Special Needs
Power of Attorney
A power of attorney can be used by a competent adult to identify a person to make legal and financial decisions on their behalf. A power of attorney can be broad or limited to certain actions such as selling a person’s home. A power of attorney can be effective immediately or after the individual is unable to make legal and financial decisions. A durable power of attorney is effective after a person becomes incapable of making their own financial decisions and if it is not durable it will terminate and become ineffective when the individual is incapable of making their own decisions.
Advanced Healthcare Directive
In an Advanced Healthcare Directive an individual identifies an agent who is able to make healthcare decisions on their behalf when they are unable to do so themselves. In the Advanced Directive an individual is able to communicate their wishes regarding medical treatment, including whether to provide, withhold or withdraw certain medical treatments. In order to create a valid Advanced Healthcare Directive, an individual must be 18 years of age, able to understand the risks and benefits of a healthcare directive, be able to communicate their healthcare wishes or identify who should make those decisions for them.
Additionally an individual can create an advanced directive for mental health services. This advanced directive allows an individual to decide in advance what mental health services they want if they become incapable of making those decisions themselves. Similar to an Advanced Healthcare Directive, an advanced directive for mental health services will include an agent and may include instructions regarding mental health services, professionals, or programs that the individual does or does not want to use.
Supported Decision Making Agreement
As we discussed a couple of weeks ago, Maryland recently enacted legislation which allows for individuals with special needs to enter into Supported Decision Making Agreements. These agreements allow for an individual to identify people who they would like to have support them in making decisions in different situations. Supporters are there to help the individual navigate decisions, receive and understand information, and discuss options but are not the final decision makers like they are under a Power of Attorney or Advanced Healthcare Directive. Supported Decision Making Agreements are a great way for your loved one with special needs to retain some of their independent decision making. For more information on Supportive Decision Making see our article here.
Guardianship
If your loved one is unable to enter into any of the above agreements and unable to manage their day to day lives then you may need to seek Guardianship through the court. Caregivers should consider all other options both formal and informal before they consider starting a guardianship petition. In the court proceeding the judge will look to see if there are any “least restrictive alternatives” available before giving a person’s decision-making rights to someone else. Guardianship can be tailored to certain kinds of decisions and should be limited only to those decisions that the individual is unable to make. For additional information check out Guardianship and Its Alternatives: A Handbook on Maryland Law
For some great videos on these topics and more check out the Maryland Court’s Alternatives to Guardianship – A 10-Part Series here. Also, the Planning Now Guide is an excellent resource that includes information on wills, trusts, financial planning, and financial and healthcare benefits. If you are a caregiver for a loved one with special needs and want to discuss how you can plan for your loved one or want to talk about what documents are needed so you can be the best advocate for your loved one, schedule a complementary 15 minute consultation so we can chat.