If you are the parent of a child with special needs, it is important to plan for what will happen once they turn 18 and you are no longer legally able to make decisions for them about their medical care, finances, and other areas of their life. As a legal adult, your child will be expected to be able to make these decisions for themselves; however, in order to make these decisions legally binding, they should be able to understand the decisions and the consequences of it. If your child will be unable to make these types of life decisions for themselves, it is important to consider legal guardianship.
What is Guardianship?
When a child is born, the child’s parents are automatically legal guardians up until the time the child turns 18, at which point the parents are no longer the legal guardians. In cases where the individual is not able or competent to make decisions for themselves and manage their affairs due to a disability or special needs, someone — usually a family member — is able to petition the court to become the individual’s legal guardian and be able to make decisions on their behalf.
There are different types of guardianship, depending on the person’s individual needs. There is a guardian of the person, who can make decisions about a person’s healthcare, housing, food, clothing, and other personal matters. There is also a guardian of the property, who is able to make decisions about a person’s money, income, property, and other financial matters. One person can serve as both.
Things to consider when it comes to guardianship for special needs adult children:
1. Does your child need a guardian?
Not everyone with a mental or intellectual disability or other special needs requires a guardian when they turn 18, and in fact there can be benefits to not having a legal guardian appointed. Unfortunately, obtaining legal guardianship through the court can be complicated and expensive. It also results in a loss of independence for your child, as the appointed guardian will make all decisions on their behalf as ordered by the court. For these reasons, a legal guardian should only be appointed if there are no other alternatives that are appropriate for the individual and the situation.
2. What are the alternatives?
The alternatives listed below are some of the options that could be appropriate for your child’s needs. These can be used either alone or in combination with whatever other supports are needed to allow your child to retain as much independence as possible. It is recommended to discuss all possibilities with your child as well as their teachers, doctors, and any other care providers to determine the best route to take and how to help your child transition into adulthood.
- Special needs trust
Special needs trusts can be very useful for adults with special needs. This is a specialized trust that allows the disabled individual to enjoy the use of property while at the same time allowing them to receive essential needs-based government benefits. For more information about special needs trusts, check out this article.
- Family guidance
If you or another family member are able to provide advice and support to help your child make decisions when needed, there may be no need for a court-appointed legal guardianship. However, guardianship can protect your child if they are easily influenced and may be taken advantage of because it prevents them from being able to make any big decisions without their legal guardian.
- Financial representative or joint accounts
To help with financial decisions and management, you can arrange a joint bank account with your child without needing legal guardianship. While this does not prevent your child from being able to make financial decisions alone, it can be helpful in some circumstances.
3. Who should be named as guardian?
In most states, the preference is for the parents to be appointed as legal guardian. If parents are not able to, then an adult sibling or other family member is the next preference, followed by a close friend. If none of these are available, the court can appoint a professional guardian. As a parent to a special needs child, consider what is best for your situation. If you have been caring for and acting as guardian for your child all along, then it is likely that you are the best choice to be appointed legal guardian once they become an adult. If you are worried about what will happen once you are no longer able to care for your child, be assured that the guardianship does not end and the court will appoint a new guardian.
4. How to obtain guardianship
A petition must be made to the court containing information about the person petitioning, the person who will be under their guardianship, and the person’s disability. A statement from a doctor outlining the individual’s level of capacity can also be helpful. The petitioner must present evidence of a need for guardianship before a judge. This can all be a lengthy process. Typically there will be attorneys, doctors, and other witnesses involved to help the judge determine the individual’s need for guardianship and decide if this is the best option for that person.
5. What does a guardian do?
The powers and duties given to the guardian will be outlined by the court when one is appointed, and these can vary from person to person. In some situations the guardian must ask permission from the court to make certain decisions, but for the most part the guardian is able to make all necessary decisions for the individual. Guardians are usually required to file an annual report with the court so that the court is able to verify that the individual’s needs are being met and that the guardianship is beneficial to them.
As you consider all of these questions and options, remember to bring your child into the discussion whenever possible and make this a joint decision. Allow your child’s care providers to weigh in and seek legal counsel if you feel it may be helpful. For more more information and resources or to find out how to get help, visit our How to Get Services page.