Helping your high-functioning child transition to adulthood.
Several months before Matt turned 18, his mother, Nancy, sought advice from their attorney regarding Matt's future educational needs. As a young man with autism, Matt was gifted in mathematics and generally high-functioning. Yet, his autism severely affected not only his understanding of, and patience with, the education system's bureaucratic requirements, such as information release forms, class selection, and registration, but also his ability to effectively communicate his frustration. Of course, Nancy had been involved in those types of decisions while Matt was a child, and both mother and son saw value in maintaining her involvement through the completion of Matt's formal education. In many states, a child qualifying for special education programs remains eligible through his or her 22nd birthday (in Michigan until age 26). However, once the child reaches the age of majority, educational decision-making authority is legally shifted to the child. Generally, adults who are high-functioning will be determined legally competent and therefore are not candidates for guardianship, but the need for assistance with education decisions may continue. An education power of attorney may give the adult child and parent the necessary documentation to keep the parent involved.
Education Power of Attorney
Matt and his attorney prepared an education power of attorney, which, like a financial or healthcare power of attorney, gave limited powers to a designated "agent." By designating Nancy as his agent, Matt gave his mother the authority to continue to take actions necessary or useful to his education. As with any power of attorney, Matt's choice to make his education power of attorney was entirely voluntary, and he could revoke it at any time.
In preparing an education power of attorney, the parents, child, and attorney should consider the various details of the child's situation, family scenario, and educational programs. Some examples of provisions in an education power of attorney include:
* providing opportunities for educational programs
* making education decisions
* enrolling the child in educational programs
* investigating and arranging for occupational training programs
* authorizing services or approving accommodations provided under federal law
* accessing student records
Unlike healthcare and financial durable powers of attorney, which today are authorized by state statutes (and for which many states have a form version), education powers of attorney are an innovation. Therefore, it is important for the child and parent to involve professionals in the preparation process. First, parents will need to work with an attorney in drafting the document for the child's individual circumstances and the state's particular laws. Second, it is helpful to forward a working copy of the document to the school district's attorney for comment and possible additional provisions. In this way, the parents engage the school's attorney as an ally early in the process, drawing upon that attorney's expertise and minimizing future misunderstandings or conflicts. The article, "Planning with Special Needs Youth upon Reaching Majority: Education and Other Powers of Attorney," by Judith C. Saltzman and Barbara S. Hughes (NAELA Journal, vol. 1, no. 1, Spring 2005), can assist an attorney with additional information and sample provisions for an education power of attorney.
An education power of attorney can help maintain the ongoing peace of mind to which both the child and parent are accustomed from the child's earlier educational years. First, the parent or other agent will be able to stay on top of problems that may develop for the young adult. Second, if the agent runs interference for the child concerning bureaucratic requirements, the young adult can focus on actual education and school activities. This should help a young adult with an autism spectrum disorder avoid meltdowns over issues and procedures that contribute nothing to the student's education. Finally, an agent facilitating the student's educational experience helps prepare the student for successful pursuit of higher education and a career.
Additional Suggestions for Meeting with an Attorney
Parental preparation with the young adult helps smooth the interaction with the attorney. If the student understands, as much as possible, the purpose and format of the conference with the attorney, surprises are minimized. Next, before the initial conference, parents should alert the attorney to problematic stimuli and cues that the young adult client may display, so that the attorney will anticipate particular topics or issues to avoid and will know when the young client needs to take a break. For a client with autism, for example, an attorney should be aware of the client's conversation style and attention span to make the conference as productive as possible. Finally, the attorney will want to take steps to assure the quality of the attorney-client relationship. The attorney will want to take all reasonable steps to establish an attorney-client relationship with the young adult, including direct communication and confirming the client's legal competence to execute a power of attorney.
When parents and a competent young adult with disabilities determine that ongoing parental advocacy in education is appropriate, an education power of attorney can be a useful tool. A well-drafted education power of attorney can help keep parents in the loop regarding the student's education, especially for administrative and decision-making purposes. Furthermore, the student can exercise appropriate independence and can focus more fully on the learning aspects of his or her education.
Barbara S. Hughes has practiced law for over 21 years, focusing on the legal issues facing the elderly and persons with disabilities of all ages. A partner at the Madison, Wisconsin law firm of Hill, Glowacki, Jaeger & Hughes, LLP, she comes to her interest in facilitating the best in special education experiences from her "past life" as a sixth grade teacher. Barbara is a member of the Special Needs Alliance and currently serves on the steering committee of the National Academy of Elder Law Attorneys Trust and Special Needs Trust SIG (Special Interest Group). Barbara has been selected as one of the city's best attorneys in Madison Magazine and as a Wisconsin estate planning and probate "Super Lawyer" in Law and Politics Magazine. She has two children, two young grandsons, and a special granddog who is competing nationally in the AKC's agility trials.
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|Author:||Hughes, Barbara S.|
|Publication:||The Exceptional Parent|
|Date:||May 1, 2008|
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