As a parent of a special needs teenager, you may be worried about what may happen when your child turns 18. Up until that important birthday, parents have complete authority over their child's finances and can participate in health care decisions. After age 18, however, a child is transformed into an "adult" under the law and a parent can no longer exercise control over a child's finances or property.
For parents of a special needs teenager, the 18th birthday may be a bit scary. For example, if your child has Autism he or she may be fully capable of handling their own money, but the child may also be very trusting of strangers and may be susceptible to undue influence. In Indiana, a parent may file a petition for guardianship over their special needs child. A guardianship allows the parent to continue to exercise care and control over the teenager's finances, property, and to participate in health care decisions even after the child turns 18.
Obtaining a guardianship involves the following steps:
A physician's report tells the Court your child's diagnosis and why a guardianship is necessary to protect the child. The petition attaches the physician's report and asks the Court to appoint one or two individuals, usually the parents, as the child's guardian. At the hearing, the child and potential guardians will be asked to testify. This process is informal and friendly. If the petition is granted, then the guardians will receive letters of guardianship and will take an oath. The guardian then has the power to maintain and care for the child's finances and property. The guardian is required to file an inventory of the protected person's assets within ninety days and is required to submit an accounting within one year, and then two years thereafter.
The guardianship can be permanent or temporary. For example, if your child has developmental delays and requires a few years to mature enough to handle his or her own finances, the guardianship can be terminated. The guardianship can also last indefinitely if the child will need a guardian for his or her lifetime.
If you have questions about obtaining a guardianship over your special needs teen or about guardianships in general, contact Ken or Sara.
In 2013 the Indiana legislature created a new kind of advanced directive form called the Physician Orders for Scope of Treatment form, or POST. This form is meant to allow chronically ill patients to dictate their end-of-life care on a form that will travel with them from facility to facility and will ensure they receive consistent care. The form discusses whether cardiopulmonary resuscitation (CPR) may be administered, whether or not to administer life support measures, antibiotics, and artificial nutrition.
A POST form may be filled out by any “qualified person” including any individual who has any of the following:
The form may be filled out by the individual, if over 18, or his or her representative (health care representative, healthcare power of attorney, or guardian, see I.C. 16-36-6-7(a)). If an individual is under the age of 18 that individual cannot complete the POST, unless certain requirements are met under I.C. 16-36-1-3(a)(2) (for example, the minor is emancipated or not receiving support from his or her parents).
The form should be filled out in consultation with a health care provider and it must be signed by a physician. The POST allows patients to designate a healthcare representative who is authorized to make decisions on behalf of the patient if the patient is no longer competent or well enough to make those decisions for him- or herself. Note that if an individual appoints a healthcare power of attorney on the POST form, that declaration supersedes any such appointment on any other form. See I.C. 16-36-6-20.
A copy of the form should be kept in the patient’s medical records. The original POST is considered the personal property of the individual and should be kept with the patient at all times.
The POST can be revoked in a variety of ways, including in writing or orally. The form is meant to be flexible and the statute allows a patient to change the form at any time. A patient may also change his or her mind during treatment and orally request different treatment than is stated on the POST.
The POST will likely be very valuable for chronically ill patients, especially for those who frequently move between facilities. This form, however, should be used in conjunction with a properly tailored estate plan that includes a last will and testament, general durable power of attorney, healthcare power of attorney, and/or advanced healthcare directives.
For example, if a chronically ill patient no longer has the capacity to fill out the POST, then that patient’s health care representative may complete the form. However, that patient must have first appointed the health care representative through his or her estate planning documents. Additionally, a healthcare power of attorney will allow your representative broader powers to make healthcare decisions for you, as the POST is limited to the three categories as described on the form. An advanced healthcare directive (or living will) similarly allows you to broadly describe any medical interventions you wish to or don’t wish to receive. As such, the POST is another useful tool that should be part of your overall estate plan.
If you need assistance with your estate plan or have questions about the POST, please contact Ken or Sara.
6/2/2014 0 Comments
Starting June 1, 2014 all Medicaid recipients who have income over $2,163 must establish a Miller Trust to maintain or establish Medicaid eligibility. This new law has created confusion and frustration among Medicaid recipients and practitioners alike. We anticipate that even if a recipient established a Miller Trust and sent the required documentation to the Family and Social Services Administration (FSSA) the recipient may receive a discontinue notice from Medicaid due to the backlog at FSSA in reviewing the trust documents.
If you receive a discontinue notice from Medicaid because your income is higher than $2,163 and you have already sent your Miller Trust documents to FSSA, you must appeal the decision. Note:
If you failed to establish the Miller Trust and submit the documentation to the FSSA before June 1, 2014 you can still appeal and work on establishing the trust during the appeal. The FSSA has information about Miller Trusts here.
Ken and Sara are happy to answer any questions you may have about your Medicaid eligibility.
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