The Americans with Disabilities Act (ADA) provides essential support and empowerment to individuals with special needs and disabilities. It offers numerous options for these individuals and their families to live as independently as possible. Legal frameworks are available to create or amend plans that best serve their unique circumstances. Since requirements vary by state and change over time, it is important to stay informed about applicable laws and resources.
Table of Contents
- Guardianships
- Guardianship Alternatives
- Supported Decision-Making (SDM)
- Healthcare Proxy
- Physician and Medical Orders for Life-Sustaining Treatment (POLST/MOLST)
- Power of Attorney
- Supporting Independence and Dignity
Guardianships
One of the most traditional and widely used options to support a person with special needs is guardianship. Guardianship types vary by state, so planning must consider the individual’s state of residence. Common forms include:
| Type of Guardianship | Description |
|---|---|
| Guardian of the person | Responsible for ensuring proper care, supervision, housing, education, vocational planning, medical care, and end-of-life decisions. |
| Guardian of the estate or conservatorship | Manages finances from sources other than benefits checks, with fiduciary duty to preserve eligibility for government benefits and provide annual accounting and tax filings. |
| Limited guardianship | Oversees specific decision areas (e.g., medical treatment), allowing the individual to retain autonomy in other life areas. |
| Temporary guardianship | Court-appointed in emergencies for immediate decision-making, lasting up to 90 days while permanent guardianship is reviewed. |
| Successor guardianship | Pre-identified in legal documents to ease the transition of guardianship when needed. |
Guardianship Alternatives
Alternatives to full guardianship should be carefully considered and tailored to the individual’s needs. An attorney with special needs expertise can help develop plans that balance support and autonomy. Options include:
- Supported Decision-Making (SDM)
- Healthcare proxy
- Power of attorney
- Physician Orders for Life-Sustaining Treatment (POLST)
- Medical Orders for Life-Sustaining Treatment (MOLST)
Supported Decision-Making (SDM)
SDM allows individuals with special needs to retain legal decision-making rights with appropriate support. This less restrictive alternative to guardianship keeps the person at the center of decisions by consulting family, friends, social services, and others. The American Bar Association (ABA) endorses SDM as a progressive alternative to traditional guardianship.
Healthcare Proxy
A healthcare proxy permits a named person to make healthcare decisions if the individual loses capacity. Also called durable healthcare powers of attorney or healthcare surrogates, these documents require two unrelated witnesses. They only take effect upon a physician’s determination of incapacity. Living wills may be combined with healthcare proxies to guide medical care preferences and end-of-life decisions.
Physician and Medical Orders for Life-Sustaining Treatment (POLST/MOLST)
POLST or MOLST documents are physician-signed medical orders specifying treatments such as Do Not Resuscitate (DNR) or Do Not Intubate, tailored to a patient’s condition. These require physician involvement and are for patients with terminal or serious prognoses. An attorney can explain these documents but cannot create them. HIPAA authorization for healthcare proxies and loved ones may also be advised.
Power of Attorney
A general power of attorney (financial power of attorney) grants authority over financial matters, such as:
- Applying for government benefits
- Selling property
- Changing investments
- Signing income tax returns
Supporting Independence and Dignity
Supporting individuals with special needs fosters independence and dignity, positively impacting overall well-being. While childhood legal protections end at 18, many adults with special needs continue to require assistance with complex decisions. Consulting a special needs attorney can help maintain dignity while providing necessary guidance during this transition.
Start Planning with Trusted Legal Support
We hope you found this article helpful. If you’d like to discuss your particular situation, please contact us or call our Sherwood, Searcy, Little Rock, or Benton offices at 501-834-2070 to schedule a consultation. We look forward to the opportunity to work with you.