Estate Planning

You indicated that the adult with a developmental disability is capable of making some or all decisions and may like to authorize someone to act on their behalf in specific instances. 

What is the estate planning option?

The estate planning option consists of having lawyer create two simple legal documents (a durable power of attorney and health care surrogate designation) that your adult with developmental disabilities can sign.  This allows the adult to designate specific decision making rights to a parent or person they trust.  The health care surrogate documents also allow the adult to make their wishes known for how they would like to have certain medical situations handled if they ever arise. 

This is the best option in most cases as it provides flexibility and civil rights protections for the adult with developmental disabilities (but please consult an attorney if you are unsure). ​

You can read about additional tools, like Social Security Representative Payees and trusts in this toolkit.

When can the estate planning process be started?

You can start planning ahead of time, however, the adult with developmental disabilities must be 18 years old in order to sign a power of attorney or health care surrogate designation.  This is the age where all the rights previously held by the parent passes to an adult.

What is a durable power of attorney?

  • This is a legal document that allows the adult with developmental disabilities (referred to as the principal) to give certain decision making rights to another person (referred to as the agent) on their behalf. 
 
  • The rights given to the agent can be "general" and cover almost any area, or "limited" and cover only specific areas where the principal would like assistance.
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  • The durable power of attorney allows the principal to give decision making rights to the agent in a wide range of areas.  
 
  • The durable power of attorney remains active regardless of how long it has been in place, and does not stop working even if the principal becomes incapacitated.  This makes it a great solution as it does not need to be renewed, and the agent can still act to make important decisions even if something happens to the principal.
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  • The durable power of attorney can be taken back by the principal at any time if their wishes change.  This must be done in writing.  This provides flexibility as the principal can easily change things as needed if their situation improves over time.

Next: What is a Health Care Surrogate Designation?