Founding Attorney
Compassionate Legal Planning for a Child’s Future
How to Tell the Difference: Mental Illness vs. Behavioral Problems
When a child exhibits concerning behaviors—such as mood swings, outbursts, or poor judgment—parents face a daunting question: Is this simply misbehavior, or a sign of something deeper? While some changes might be dismissed as part of growing up, persistent or severe symptoms can indicate depression, bipolar disorder, or related mental health conditions.
Important Clues to Watch For:
- Ongoing issues impacting home, school, or social life
- Distress or impairment for your child or others
- Self-harm, severe anxiety, or unsafe risk-taking
- Symptoms lasting several weeks or worsening over time
Helpful Resources:
- National Alliance on Mental Illness: Warning Signs and Symptoms
- Child Mind Institute: Mental Health Disorders Symptoms Guides
- CDC – Children’s Mental Health Overview
Consult your pediatrician or a mental health professional at any sign of concern. Early awareness is critical for effective support and planning.
Why You Must Prioritize Estate Planning Immediately
If your child has—or could develop—a significant mental health diagnosis or special needs, it’s essential to create an estate plan without delay. Waiting can expose your child to major risks:
- Inheriting assets outright can worsen their vulnerability and enable destructive behaviors
- Losing eligibility for benefits like Medicaid or SSI
- No legal authority to intervene or assist once your child turns 18
- No designated advocate or guardian if you become incapacitated
Taking action now protects your child’s health, security, and long-term wellbeing.
Key Legal Tools for New York Parents
New York law offers several critical strategies to maintain financial protection and ongoing support for your child.
1. Guardianship: Article 81 vs. Article 17A
Article 17A Guardianship
- Designed specifically for individuals with intellectual or developmental disabilities.
- Usually applies when a child with such challenges is approaching adulthood (age 18).
- Granted by the Surrogate’s Court, it covers decisions about personal, medical, and financial matters.
- Often more straightforward, but applies only to qualifying conditions (intellectual/developmental disabilities and some traumatic brain injuries).
Article 81 Guardianship
- Covers adults who become incapacitated due to mental illness or other conditions (not limited to developmental disabilities).
- Granted by the Supreme Court, tailored to the adult’s specific functional or cognitive limitations.
- Often used when mental illness or a progressive condition is involved, especially if incapacity occurs in adulthood.
- Flexible and can limit the guardian’s authority to certain areas (like finances or health care), depending on the person’s needs.
Which law applies to your child depends on their specific diagnosis and situation. These distinctions are complex, so discuss your child’s needs with an experienced attorney to choose the right option for ongoing protection.
2. Durable Power of Attorney (POA)
- Allows you to manage your child’s financial matters while they are competent.
- Remains valid if your child later becomes incapacitated.
3. Health Care Proxy
- Enables you to make medical decisions if your child is unable to do so.
- Essential for effective advocacy during emergencies or hospitalizations.
4. Special Needs Trust (SNT)
- Holds assets for your child’s benefit without risking vital benefits eligibility.
- Assigns a responsible trustee to manage inheritance and distributions.
The Dangers of Failing to Plan
Without these legal safeguards:
- Your child may be vulnerable to exploitation
- They could lose government benefits
- You may lack authority to intervene when it matters most
- Important decisions could default to the court or public agency, rather than your family’s trusted advocates
Ensuring Continuity of Care
Estate planning is about more than just documents—it’s your child’s lifeline:
- Designate a reliable person (not your child) to manage finances and medical decisions if you’re unable to do so
- Communicate your wishes for your child’s care and support
- Regularly review and update your plans as circumstances change
Take Action: Protect Your Child’s Future Today
You are not alone—many parents grapple with the challenges of supporting a child with complex needs. Compassionate, knowledgeable legal guidance can ensure your family is protected, your wishes are clear, and your child’s future is secure.
Contact Sverdlov Law PLLC today at www.sverdlovlaw.com or 212-709-8112 or book a time on our calendar https://calendly.com/rochelle-sverdlovlaw/15min for a FREE evaluation of your case and get started with a plan tailored to your family’s needs.
This information is provided as a general overview and does not constitute legal advice. For personalized guidance, consult a New York special needs attorney.