Elizabeth J. McInturff: Protecting adult children with mental health issues

Oops, she did it again – Britney Spears is back in the news, but not for her hit pop songs. This time, the headlines concern her multiyear conservatorship and battle with her father over who controls her life and how it is controlled.

In Maryland, the equivalent to a conservatorship is a guardianship of the person and/or property of an alleged disabled person.

A guardianship of the person and/or property is brought when it is alleged that an individual suffers from a disability that prevents him or her from making or communicating responsible decisions regarding his or her person or property.

Typically, we think of guardianships relating to elder individuals with diminished capacity, but, like Britney, there is a segment of a younger individuals who are alleged to require such assistance due to mental health struggles.

Parents of a disabled child may already be familiar with the requirements of an adult-guardianship through discussions with their child’s doctor or educators. However, they may be caught off guard when the disability is newly present, such as the result of an accident or mental health challenges rather than a long-term disability or illness.

Many parents are further caught off guard to learn that virtue of parenthood alone does not give them the ability to make medical or financial decisions on behalf of their adult child.

To obtain guardianship over their adult child, the parents must follow the requirements set forth in the Rules, including submitting two medical evaluations providing the nature of the alleged disability and how it does or does not affect the alleged disabled person’s ability to manage their person and property.

This process can be costly and time-consuming, between obtaining the medical evaluations, getting on the court’s docket, and then undergoing a hearing on the merits of the matter. There are also court costs and filing fees, fees paid to medical experts, and missed days of work.

The court also evaluates the priority and fitness of the party petitioning for guardianship. Md. Code Ann., Est. & Trusts § 13-707 establishes the priority for the appointment of a guardian of the person.

Parents are fourth in order of priority; however, the court is empowered to bypass statutory priority for good cause shown to appoint the person(s) best suited to care for the alleged disabled person.

The court is also mindful that a guardianship is an extreme step that results in the deprivation of some or all of a person’s rights. A guardian may, for example, make decisions about where a person lives, how they spend their money, and who they spend social time with. In fact, these are the crux of the issues in Britney’s case.

Therefore, the court considers all lesser available means before appointing a guardian. These would include, for example, whether there is a previously appointed power of attorney or if the moving party already is a surrogate decision-maker and able to make decisions under that authority.

What can parents do to protect their adult child prior to when the need for a guardianship arises? How can they streamline the process in the event a guardianship is needed?

I typically recommend that they execute the following four documents with their adult child:

(i) HIPAA Authorization form or Medical Information Disclosure Form executed by the adult child permitting the use and disclosure of otherwise protected health information to specified persons. This will not give a parent the ability to make health decisions on behalf of their adult child, but will permit access to relevant medical records.

(ii) Advance Health Care Directive designating a health care agent to act on an individual’s behalf in the event that they are unable to make their own health care decisions.

(iii) Financial Power of Attorney designating an individual to manage a student’s finances and property, and

(iv) FERPA release giving the adult child’s university permission to share the student’s educational information with their parents or guardian. Like the HIPPA authorization, this will not give a parent decision making authority, but will permit them access to key records.

Of these, the Advance Health Care Directive and Financial Power of Attorney are the two most crucial documents. They save valuable time in the event of an emergency, permit the agent to make certain decisions on behalf of the alleged disabled person, and also are considered in priority of appointing a guardian if one is needed.

These documents may not help Britney now, but they can help parents navigate the waters if their adult children encounter mental health issues.

Elizabeth J. McInturff, Esq., a partner at JDKatz, PC, represents clients throughout Maryland and Washington, D.C., in complex family, civil and commercial disputes.

A link to the article itself can be found here.