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Legal Solutions for Families with Special Needs Teenagers and Young Adults

 

When children with special needs approach the age eighteen (18), parents must realize that they will soon become adults, at least as far as the law is concerned. Once your child with special needs becomes a legal adult, you will no longer have the authority to make medical, financial, or legal decisions on their behalf. If your child with special needs cannot handle these responsibilities without assistance, or at all, parents must take steps to be granted the legal authority to continue assisting their children and/or acting on their behalf after they turn 18.

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Power of Attorney (Representation and Mandate) / Supported Decision-Making Agreements (SDMA)

Young adults that have reached the legal age of majority (18) and need decision-making assistance and/or have declining medical health may need to prepare legal documents to ensure that their future needs are met. Power of Attorney and Supported Decision-Making Agreements are two legal documents available under Louisiana law that can be utilized to meet these needs. Both of these options require that the young adult executing these documents has the mental capacity to read and understand the meaning of the documents. A power of attorney authorizes another individual to also make decisions when the “principal” is unable to make them. For example, a medical power of attorney allows medical decisions to be made for an individual when that person is unable to make their own decisions. It does not remove a person’s ability to make decisions for themselves. A SDMA can be an effective tool for those that need support/assistance making their own decisions regarding daily living. The designated Supporter does not make decisions on behalf of the adult with a disability but is required to support the will and preference of the adult. Both of these legal documents can be revoked and/or revised at any time.

 

Continuing Tutorship

If your young adult with exceptionalities does not have the requisite capacity to understand and execute a legal document, then a continuing tutorship may be the most effective solution to ensure proper management of medical and financial matters on behalf of your child. Continuing tutorship is available to persons above the age of fifteen and less than eighteen possessing less than two-thirds of the intellectual functioning of a person of the same age with average intellectual functioning, evidenced by standard testing procedures. Parents and/or tutors, with the concurrence of the coroner, may petition the Court to place their child under a continuing tutorship which shall not automatically end at any age. When granted by the Court this will restrict the legal capacity of the person with an intellectual disability to that of a minor, allowing a parent to continue to make decisions for their exceptional child indefinitely. A continuing tutorship is typically a more favored legal option over interdiction, as it is a much simpler and economical process, and avoids the need for a hearing in front of a Judge.

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​Interdiction​

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Under Louisiana law, interdiction is available when it is determined that a person is unable to consistently make reasoned decisions regarding the care of their person and property (financial), or a person is unable to communicate reasoned decisions regarding the care of their person and property (financial) and their interests cannot be protected by less restrictive means. Legally, an interdiction is understood to be the judicial removal of a person’s legal ability to make decisions for him/herself, which powers are placed in the hands of a court-appointed representative (curator), subject to court supervision. In essence, this takes all rights and autonomy to make decisions regarding one’s own person, finances and day-to-day life and places these responsibilities into the hands of another person. This can only be revoked or revised through further judicial action. While this is a restrictive remedy it is many times the only avenue to ensure that a person’s needs are being met and that they are being taken care of by an invested and loving family member or friend. For example, a young adult with a degenerative disease or an exceptionality restricting communications and/or mental capabilities may be well served by an appointed curator giving them a voice and monitoring their overall well-being and day-to-day living conditions. An interdiction requires the Court to be Petitioned and a hearing to be held in front of a Judge, with evidence being summitted before a Judgment can be issued.