Why Every Adult With Special Needs Should Have Estate Planning Documents

Special Needs can take on many forms, and not all of them affect a person with special needs' ability to make decisions. In fact, although some may require significant care, they can still carry out most day-to-day activities.

In most cases, those with special needs have the capacity to create their own estate planning documents, and in some cases it is crucial that they do so.

One scenario that often arises has to do with "HIPAA" regulations. HIPAA, which stands for Health Insurance Portability and Accountability Act of 1996, is the primary federal regulation governing a patient's private medical information. HIPAA gives a patient the right to manage her medical information and regulates who can access that information. Because medical providers must follow HIPAA regulations, it is difficult for caregivers who legitimately need to access another person's medical records, often in an emergency, to do so without a health care proxy or durable power of attorney that authorizes the information's release. Under HIPAA, doctors in these situations can disclose medical information to patients' families, but they are not required to do so without a release from the patient.

Parents of children with special needs often bump into these restrictions for the first time when their child reaches 18 and obtains his own right to privacy under HIPAA. If the child is not under guardianship, either because he does not require it or because no one has obtained it, it may be hard for a parent to obtain information from a doctor or hospital without some form of HIPAA release from their child. In these cases, it is important for the child to execute a valid health care proxy, if they are able to do so. The health care proxy will not only allow access to medical records, but will also provide that the child's wishes are carried out if he ever requires serious medical care.

Another case for estate planning involves adults with episodic special needs. These adults may be perfectly functional and rational 99 percent of the time, yet they are completely disabled when their illness does strike. Having a functional health care proxy and durable power of attorney allows a health care agent or an attorney-in-fact to help a person with mental illness manage his affairs when necessary, without having to obtain an emergency guardianship when that person falls ill.

Finally, there are people with special needs who require assistance only with certain tasks but who are perfectly capable of making estate planning decisions, including the choice of who receives their property.

What’s the point?

Don’t leave care to chance. Hire Legally Remote, PLLC to help you or your family member create these important documents, and get accurate recommendations as to how you can accomplish important estate planning goals.