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Not Sure Who Should Be Your Child’s Guardian? Here Are Some Tips

Guardian, Special Needs Trusts, Attorney, Atlanta, GA Recently a family came in for a special needs trust consult and they were at a loss as to whom they should designate as their child’s guardian.

Although the wife had two sisters, neither of them lived close by; nor took an interest in their intellectually disabled niece. The husband also had a sister, but she didn’t have any children – and never wanted any.

Although both of the couple’s parents were eager to be guardians, the parents were of advanced age and in poor health. And as for extended relatives, well, they were extended and didn’t have any meaningful contact with their family.

It’s OK If The Guardian Is NOT Biologically Related

This scenario is more frequent than may you think. We often talk with families who do not have any biological family that can or want to serve as their special needs child’s guardian. And that’s OK.

You don’t want to designate individuals as guardians if they don’t want to be or do not have a meaningful relationship with your child.

“Our Chosen Family”

One of the things that my wife and I have learned through the years (and being in a similar situation as the couple that came to my office) is that you create what we call “Our Chosen Family.”

Our Chosen Family consists of people who WANT to be a part of our lives and enjoy spending time not only with us, but our special needs son. These are people who we’ve come to trust and love us as if they were our own biological family – and it’s these same people who we have chosen to be our children’s guardians.

Something to consider is that by taking the pressure off of your biological family, this may encourage them to remain engaged with your child. Many times biological family members want to help, but may not be in a position to assume guardianship.

Just because you do not choose someone as guardian, does not mean that they cannot be involved in your child’s life and/or be of assistance to the guardian.

There are several ways to keep non-guardians involved including informal roles like “God-parent” or more formal structures like Micro-Boards.

Things to Consider When Choosing A Guardian

When considering who to chose as your child’s guardian, here are some things to consider:

  • Does the potential guardian have a meaningful relationship with your child?
  • Would your child need to move to live with the guardian? How would this impact your child’s therapies or education?
  • Does the potential guardian have the energy and health to take care of your child?
  • Are they trustworthy and responsible?
  • Would the potential guardian continue to care for your child in a way that you want?
  • Most importantly, do they WANT to be a part of your family and be your child’s caregiver if something were to happen to you?

Also, something to keep in mind is that NO ONE will ever care for your child like you do. So it’s important to keep this in mind and be realistic when selecting a guardian.

We hope that our child will never need a guardian, but if they do, this person will need to quickly step in and make sure your child receives the love and care they need.

We Can Help You Decide

The story of the couple that came into my office has a happy ending.

After talking with them about their “Chosen Family,” the answer as to whom should be their daughter’s guardian was much easier and the person they selected gave them great peace of mind.

So even though the guardian they selected was not biologically related, the guardian was their “Chosen Family.”

If you’re struggling with who to designate as a guardian for your child, we can help. I can be reached at and 678.325.3872.

#SpecialNeedsTrusts #Guardians #ChosenFamily

How To Obtain Guardianship For Your Special Needs Child

Guardianship Attorney GeorgiaIn many states, including Georgia, as soon as your special needs child turns 18, he or she becomes a legal adult and is assumed to be able to make decisions on their own behalf unless a court determines otherwise.

However, if you determine that retaining guardianship over your child once he or she turns 18 is in your child’s best interest, here’s how you do it. (See related post: Is Guardianship The Right Choice When Your Special Needs Child Turns 18?)

Start Planning BEFORE Your Child Turns 18

Requesting guardianship can be a lengthy and involved legal process. In order to retain guardianship of your child, you need to have the court appoint you as your child’s guardian.

To make sure there is not a gap in your child’s guardianship when he or she turns 18, it’s important to prepare your petition to the court well in advance of your child’s 18th birthday. If there is a gap in guardianship (i.e. your child turns 18 before you have guardianship) and a decision needs to be made about your child’s health or legal rights, it could cause some serious problems.

Step-By-Step Process

  • Every state’s guardianship laws differ slightly and the process can be daunting. This is where hiring an attorney to help guide you through the process is beneficial.
  • There are several forms you will need to complete, including forms that will need to be completed by a qualified physician to evaluate your child.
  • Once you submit the forms, your child will need to appear in court with you. As much as possible, you will want to help your child understand the process and what to expect in advance of actually appearing in court.
  • The court will appoint a representative for your child to help determine the merits of your claim that your child is not competent to act on his or her own behalf and that guardianship is in fact the right choice. The representative will most likely want to meet and visit with your child. In addition, in some circumstances, the representative may visit your child at home.
  • Finally, you will need to attend a hearing with your child. At this point, the judge will review and determine if your child is incapacitated and, if so, to what extent he or she requires assistance. Further, the judge will then decide if the person petitioning for guardianship will be appointed as guardian.

Some Things To Consider 

  • You and your spouse or significant other can petition the court to share guardianship. You will become co-guardians.
  • If your child’s need are complex, you can request that a non-profit agency or public or private corporation serve as your child’s guardian.
  • Guardianship may not be the right solution for your child. There are alternatives such as conservator or limited guardianship that give your child more independence.

Once You Are Awarded Guardianship

The paperwork doesn’t stop once you’re awarded guardianship. Every year you will need to file detailed reports about your child’s finances and overall well being. In some states, guardians must also provide proof that they’ve made adequate residential arrangements as well as provided appropriate healthcare services.

If the guardian cannot prove that they have adequately provided for their adult ward, then the court can remove the adult ward and name a different guardian.

Getting Started

As a parent of a special needs child and an attorney with extensive experience with legal issues relating to special needs children, I can help you navigate the complex guardianship process. or 678.325.3872.