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Healthcare
June 29, 2023

Legal guardianship and health care for intellectually disabled persons

By Michael Emery, Marketing Executive at Ambledown Financial Services

When consulting clients on their financial and healthcare requirements, an area that advisors do not commonly explore is providing for the specialised needs of people with intellectual and developmental disabilities (IDD).

However, a significant number of people are impacted by IDD, with up to 3%[i] of the world’s population reported to have IDD at varying levels of severity. For their families and caregivers, ensuring that people with IDD receive the necessary care and support is a top priority.  

People with severe and profound[ii] IDD such as Down syndrome, Fragile X syndrome, Dementia and Alzheimer's disease or Autism typically cannot live independently and require support with self-care.

In addition, people with IDD are more likely to experience a range of complex health problems[iii], including epilepsy, sensory impairments, respiratory disorders, obesity, oral health problems, disorders of the digestive system and osteoporosis, presenting with health problems at a rate of 1.7 times more than those without intellectual disabilities, according to research published in the British Journal of Medical Practice[iv].

In the case of severe and profound IDD, it is often advisable for family members who are the primary caregivers to apply for legal guardianship. In terms of the Mental Health Care Act No. 17 of 2002,[v] the court may appoint a guardian if it is satisfied that the person is unable to make decisions for themselves and that a guardian is necessary for their protection. The legal guardian is responsible for making decisions on behalf of the mentally disabled person, including medical decisions. The powers and duties of the guardian are set out in the Act, which provides that the guardian must act in the best interests of the mentally disabled person and take into account their views and preferences to the extent that they are able to express them.

This is not always necessary, if other family members and doctors are happy for the primary caregiver to make decisions for the person with IDD and there are no concerns about the quality of care being provided.

An important consideration in providing for the care of a person with IDD is the cost of medical treatment. Because IDD is associated with a higher risk of health problems, caregivers, guardians and families must take steps to provide for unexpected and potentially high medical costs. Conditions such as these could have additional health related problems which could result in higher medical expenses and a greater need for gap cover. A health risk assessment with a Broker would provide an indication of requirements.

Medical scheme cover is also a key consideration, to ensure the best possible medical care. However, no matter how comprehensive a medical aid is, there is a strong likelihood that all the costs of specialist and hospital treatment will not be covered. This is where Gap cover comes in. Gap cover is a form of insurance intended to top up the medical aid cover, to cover the gap between what is charged and what the medical aid pays. Gap cover is not medical aid, and policyholders must be medical scheme members first, in order to qualify for cover.

It should be noted that IDD differs from mental illness. According to the WHO[vi], mental illness is characterised by a clinically significant disturbance in an individual's cognition, emotional regulation, or behaviour. Gap cover does not include cover for treatment for mental illness. IDD involves problems with general mental abilities[vii] that affect intellectual and adaptive functioning.

Gap cover can help cover major medical hospital admission co-payments, and the shortfall of what is owed for a hospital admission or certain out-patient procedures. Not all ap cover products are the same, and are dependent on the provider, but often the principal insured person can acquire cover for their natural/biological children, stepchildren, legally adopted children, children placed under their foster care, as well as dependants who are either mentally or physically incapacitated from maintaining themselves and who are wholly dependent on the principal insured person for support and maintenance.