Special Needs Planning: What to Know About Age 18

In New Hampshire, an individual legally becomes an adult at age 18.  As a result, there are a number of issues that require consideration well in advance of a family member’s 18th birthday.

Health Care Decisions

Medical information is subject to strict confidentiality rules and once a patient turns 18, medial information is only provided to the patient.  A patient may sign a release to allow family member(s) or other selected individual(s) to have access to protected health care information.   Also, a patient may designate a family member, friend or interested person to make health care decisions for the patient as an agent under a health care power of attorney when the patient becomes mentally incapacitated to make his or her own decisions.  If the patient does not have the capacity to sign a health care power of attorney, individuals could become the patient’s health care decision maker under the surrogacy or guardianship laws.

Health Insurance Portability and Accountability Act (“HIPAA”) Release

If an individual has the mental capacity to do so, a HIPAA release may be signed by such individual at age 18, thereby providing the designated individual(s) with access to confidential medical information.  Medical information such as medical records and direct communication with health care providers may be accessed, however an executed HIPAA release does not provide the designated individual with any decision making authority.  A HIPAA release may be revoked at any time by the patient.

Durable Power of Attorney for Health Care (“HCPOA”)

Upon reaching age 18, an individual may execute a durable care power of attorney for health care (“HCPOA”) that allows named individual(s), referred to as agent(s) or attorney(s)-in-fact, to make health care decisions.  In order to execute a HCPOA, an individual must have capacity to sign the document (i.e., the individual must be able to understand the document and the consequences of signing the document).  The document must be formally executed before two witnesses or a Notary Public/Justice of the Peace.

An agent has no authority to make health care decisions for the patient until the HCPOA is “activated” or when a physician or advanced practice registered nurse certifies in the medical record that the patient is not capable of making or communicating decisions regarding medical treatment. An individual retains the power to revoke or discharge an agent, even if incapacitated.

In New Hampshire, a “living will” is a separate section of the HCPOA document, and may be executed at the same time as the HCPOA.  If signed, a living will would permit medical professionals to make certain end-of-life decisions for the patient in the event there is not an agent able to act.

Surrogacy

If a patient loses capacity to make health care decisions after the age of 18 and  there is no individual with legal authority to make health care decisions (for instance, the patient never executed a HCPOA), a physician or advanced practice registered nurse may identify a surrogate from a statutory list of prioritized eligible individuals.  A surrogate may not be appointed over the patient’s objection and the surrogate’s authority terminates after 180 days.

Guardianship of the Person

Another option when an individual reaches the age of 18 is to become that individual’s guardian.  A guardianship may be over the person, the finances (see guardianship of estate below), or both.  Guardianship over the person provides the appointed guardian with decision making authority over areas such as health care, education, and living arrangements.

A guardianship requires filing a court petition which sets forth factual examples that show the individual’s health or safety would be at risk without the guardianship.  The factual examples must be events that have occurred within 6 months of filing the petition and one instance must be within 20 days of filing.  There is a court hearing and the individual filing the petition is required to put forth evidence and establish the need for guardianship “beyond a reasonable doubt.”  The court always appoints an attorney to represent the potential ward.  Court appointed counsel is required to represent the client’s wishes, not the client’s best interests.

Financial Decisions

Financial decisions may be made by an individual named under a financial durable power of attorney document or by becoming guardian over the estate.  As with the HCPOA, the individual who is named to make financial decisions is known as the agent or attorney-in-fact; the person who signs the document is known as the principal.  It is important to note that certain public benefit agencies, such as the Veterans Administration and the Social Security Administration, do not recognize FPOAs or guardianship, but require the appointment of a representative through the agency’s internal process.

Financial Power of Attorney (“FPOA”)

A FPOA may be executed by an adult (i.e., someone who is at least age 18) who understands the terms of the document and the consequences of signing the document.  A FPOA may be drafted to provide the agent with broad authority over the principal’s finances. If a FPOA is “durable” it means that the document is still valid even if the principal no longer has mental incapacity.  The principal always retains the power to revoke the FPOA, or to discharge the agent, even if incompetent.

Guardianship of the Estate

Guardianship over the estate involves the same type of court filing and hearing as discussed above under guardianship over the person.  A guardian of the estate is necessary if an individual over the age of 18 has assets in his or her own name, and thus requires assistance with managing the assets.  If the individual’s sole asset flows from a monthly check through the Social Security Administration, a family member or interested individual may apply to be appointed Social Security Representative Payee, thus generally avoiding the need for guardianship over the estate.  A person appointed as guardian of the estate most likely will be required to obtain a corporate surety bond, and will be required to file an inventory, and annual accounting of assets.

Public Benefits

Certain public benefits become available when an individual turns 18, including Supplemental Security Income and Aid to the Permanently and Totally Disabled benefits.   Generally, Medicaid eligibility does not change until an individual reaches age 19 or 20, if the individual continues to be enrolled in a school program.

Supplemental Security Income (“SSI”)

SSI is a federal cash assistance program for individuals 18 and older who have a disability which is expected to last at least 12 months, and who meet certain income and resource standards.  The maximum cash benefit for an individual is $841 per month in 2022 and the amount increases only if there is an annual cost of living increase.  The amount of cash awarded is also based on the recipient’s living situation and whether the recipient receives in-kind support for food or shelter expenses.  If the recipient receives in-kind support for food or shelter, the amount of the cash award may be reduced by a maximum of one third.  For example, if a child is living in a parent’s household and does not pay rent and/or is provided with food, the SSI payment will be reduced by up to one third.  Therefore, it may be beneficial for a parent to consider charging a child monthly rent or a rate for room and board.

Medicaid

Individuals receiving Home Care for Children with Severe Disabilities (HC-CSD), also known as Katie Beckett, Expanded Children’s Medicaid or Children’s Medicaid for Children with Severe Disabilities (CSD) may receive benefits until age 19.   Individuals on HC-CSD and CSD programs are notified 3 months prior to the child turning 18 that an application for Aid to the Permanently and Totally Disabled (“APTD”) must be filed to prevent the automatic termination of Medicaid and allow Medicaid benefits to continue until age 21.

Aid to the Permanently and Totally Disabled (“APTD”)

ATPD is a cash assistance program with associated Medicaid benefits.  In order to qualify for APTD, an individual must be at least 18, have a disability which is expected to last for at least 48 months, and also meet certain income and resource standards.  Eligibility for APTD is required in order for an individual to be eligible for certain types of Medicaid benefits, such as Medicaid Waiver program benefits.  As noted above, establishing eligibility for APTD at age 18 is important in order for certain individuals to retain Medicaid coverage after age 19.

Child Support and SSI

New Hampshire law generally allows a court to order child support to be made payable until your child turns eighteen or finishes high school, whichever is later.  If your child has disabilities, however, a court may order that support payments continue beyond the age of eighteen even if your child is not in high school.  These support payments cannot continue past the child’s twenty-first birthday.

If you are receiving child support on behalf of a disabled child, and your child receives Social Security Insurance (SSI) cash benefits, it is important to understand how such payments can affect your child’s eligibility for SSI.  Child support payments are counted as unearned income to your child, not to you.

If your child is under the age of eighteen, or if your child is under the age of twenty-two and enrolled in school or college, then SSI will exclude one-third of the child support amount from countable income.  However, if you are receiving child support for a disabled child who is between the ages of eighteen and twenty-one, but is not enrolled in school, SSI will count the full amount of any child support payments as countable income.

Therefore, because the amount of child support counted as income will increase, a child with disabilities who turns eighteen, and who is not enrolled in school, may have a change in his or her eligibility for SSI cash benefits.

If you are interested in learning more about other Milestone Ages of Special Needs Planning, download our ebook today:

 

Milestone Ages Special Needs Planning