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George H. Gray

Consider a Health Care Proxy or Power of Attorney for your adult child with a disability

If your child with a disability is an adult and has capacity, her or she should sign a Health Care Proxy and a Power of Attorney

Power_of_Attorney_and_Health_Care_Proxy Don’t automatically assume that your adult child with a disability may not sign a Power of Attorney (a “POA”) or a Health Care Proxy (a “HCP”).  These are two instruments which allow members of your child’s circle of support to assist him or her to make important financial and health care decisions.  If the nature of your adult child’s disability is not related to cognitive functioning, he or she should be considered “competent” and capable of signing these two most important documents. If the disability involves a cognitive impairment, there are still avenues available.     

Every “adult” is presumed competent  to  appoint  a  health care agent unless he or she has been diagnosed with an intellectual or developmental disability and a Guardian has been appointed under Article 17-A of the Surrogate’s Court Procedure Act.  However; this presumption may be overcome if you can demonstrate that your adult child comprehends that he or she: (i) has delegated  authority to make health care decisions to another person; (ii) has expressed a desire that the other person exercise the decision making authority; and (iii)  knows that the decisions to be made relate to his or her health care. Thus, the “take away” is that: (i) if the nature of your adult child’s disability does not involve cognitive functioning he or she should sign a HCP to appoint a health care proxy; and (ii)  a HCP is not inconsistent with the appointment of an  Article 17-A Guardian, but care and consideration should be exercised.  

The criteria for a POA are slightly different.  If your child has “capacity” and is over the age of 18, he or she may sign a POA to designate an agent to act on his or her behalf.  “Capacity” means the ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a POA, any provision in a POA, or the authority of any person to act as agent under a POA.  If your child has an intellectual or developmental disability, he or she will not meet this standard and the appointment of an Article 17-A Guardian is a more appropriate vehicle to delegate decision making authority.  Remember; however, that if your adult child’s disability does not involve cognitive functioning, he or she will most likely have the requisite “capacity” to execute a POA.  In either instance, your adult child should have in place a mechanism to allow others to make financial decisions for him or her; whether it is a POA or an Article 17-A Guardianship.   For a graphic comparison of a 17A Guardianship, Power of Attorney and Health Care Proxy click here

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