Parents of A Disabled Child, Beware | Kansas & Oklahoma Estate Planning

Are you the parent of a disabled adult child? Have you been appointed as his or her guardian by a court of law? If not, are you aware that your legal rights to make decisions for your child are severely limited?

Far too often I hear about parents who failed to obtain guardianship of their disabled child after the child became an adult. Usually this is because they were unaware that they lost all legal rights to make decisions for their child when he or she turned 18. This is especially disheartening when the child is in need of medical care and the parents cannot authorize it.

In a recent court decision in Kentucky, parents who attempted to execute a Power of Attorney on behalf of their child were found to lack authority. In this case, Deborah Rowe was declared mentally incompetent from birth. Her parents cared for Deborah well into her adulthood, but never sought appointment as her guardians. In 2001, they executed a “Power of Attorney” appointing Nancy Meadows as Deborah’s attorney-in-fact. Nancy handled Deborah’s affairs and decided in 2007 that Deborah needed to be in a nursing home. She signed Deborah’s admission papers, including an arbitration agreement, as “POA.” After Deborah died, her brothers brought a wrongful death action against the nursing home.

The nursing home tried to have the case dismissed based on the arbitration agreement, but did not identify any law that permitted Deborah’s parents, on the basis of custody alone, to act on Deborah’s behalf. The court found Nancy lacked authority to enter into the agreement because the alleged “Power of Attorney” was defective–her parents did not have the right to name Nancy as “attorney-in-fact” for Deborah.

Only a guardian appointed by a court can act on behalf of an incapacitated adult. If your child is not competent to make decisions, a guardian needs to be appointed. If you are the parent of a disabled child, call Vikki at 405-843-6100 to schedule an appointment to learn what actions you can take to make sure you do not find yourself in a similar situation.

Jerry Shiles
Author, Attorney
Parman & Easterday