Can I Make Powers of Attorney for My Mentally and Physically Disabled Son?

Question: Is Power of Attorney or Guardianship Better for a Disabled Child?

I have a mentally and physically disabled son who will turn 18 soon. Must I establish a conservatorship to make medical and financial decisions for him—or can I use durable powers of attorney to do this?

Answer: Your Son Must Have the Mental Capacity to Give You Power of Attorney

When your son becomes a legal adult (which is at age 18 in most states) or is otherwise emancipated, he will have full authority to make his own decisions—unless a court determines he doesn't have the mental capacity to do so.

If you want to be able to make some decisions for your son but are okay with him making other decisions for himself, all you need are powers of attorney (POAs). However, depending on the severity of your son's mental disability, you might not be able to use POAs. When that's the case, you may need to ask a court to appoint you as his guardian or conservator if you want full control of your son's finances and health after he becomes an adult.

Requirements for Power of Attorney

The basic requirements for making a durable POA—whether for health care or finances—are that the individual making the document is:

• a legal adult, and
• of sound mind.

The definition of "sound mind" can vary under different states' requirements for POAs. Generally, however, it means that you understand your circumstances and can make decisions for yourself. For your son to be of sound mind, he would need to understand what a POA is and the consequences of delegating his authority to make decisions to you.

If he is of sound mind, he can give you the authority to make decisions for him by using POAs. He will need to make a POA for finances as well as a health care POA (sometimes called an "advance directive") for you to be able to make financial and health care decisions.

POAs may not be your best bet if you want full and sole authority to make decisions for your son. He'll have the authority to revoke those POAs as long as he's still of sound mind. He'll also be the ultimate decision-maker if the two of you ever disagree.

Guardianship and Conservatorship

To get full control over your son's affairs, you will need to go to the probate court and ask to be named his guardian (sometimes called a "conservator"). A judge will determine whether your son's mental disabilities prevent him from managing his own affairs. If that's true, and the court appoints you as guardian, you'll generally have full authority to make decisions for him. But you also will have a legal duty to make decisions with his best interests in mind.

Getting Help With a POA or Adult Guardianship

It's a good idea to speak with an estate planning attorney if you aren't sure whether a POA is your best option—and especially if you're considering asking to be your adult son's guardian. An experienced lawyer can explain how your state's laws apply to your situation and give you advice on how best to move forward to protect your son as he moves into adulthood.