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Guardianship

Guardianship Special NeedsIn most states, a parent is deemed to be the legal guardian of his or her child until their child turns 18. Up until that point, parents make all the medical, financial, educational and day-to-day decisions for their children.

However, once your child turns 18, he or she is legally considered an adult and your authority to make decisions on your child’s behalf stops. This usually isn’t an issue, unless you have a special needs child that may not be ready or able to make good decisions about their care.

Following is a discussion of some options of what you can do when your special needs child turns 18.

Guardianship

With guardianship of your child, you have the legal authority to make decisions about your child’s healthcare, housing, food, clothing, and other subjects that affect your child such as decisions about a their income, property, public benefits and other financial matters.

Guardianship is not automatic. And when your child turns 18, parents (or an adult willing to oversee your child’s care) must petition the court for guardianship.

However, not every child who has disabilities needs to have a guardian. With appointed guardians, your child loses a great deal of independence. Your child will no longer be able to make decisions about their personal life, health care, financial or legal matters.

Alternatives To Guardianship

Most state laws require that guardianship only be imposed only when less restrictive alternatives would not best benefit and protect the child.

Following are a few examples of less restrictive alternatives to guardianship.

Conservatorship

If your child has the capacity to make some decisions, an option to consider is Conservatorship. The individual appointed to serve as Conservator manages your child’s property and financial affairs. Most other decisions are left up to the child.

Power of Attorney

Power of attorney is given to a responsible adult (ex. a parent) that acts on your child’s behalf on financial, legal or business matters but the child still retains the right to act on his or her own behalf.

Representative or Protective Payee

If your child receives Social Security, benefits from the Veteran’s Administration, Railroad Retirement, welfare or other state or federal benefits, the Court can appoint someone to help manage their payments from these entities. All other decisions are left up to your child.

Factors To Consider When Making This Decision

It’s important to take into consideration several factors when deciding whether your child needs a guardian or some other form of support.

  • Your child’s ability to make sound decisions, including understanding the effect and consequences of his her decisions and actions
  • Your ongoing need to be involved in your child’s medical care
  • Your need for continued oversight over your child’s financial affairs
  • Your child’s needs and wants
  • Your child’s ability to communicate his or her needs
  • Your child’s level of independence with respect to self-care (ex. feeding, dressing, bathing, etc.)
  • Whether your child will require outside support such as assisted living or a home health assistant

When To Make A Decision

The conversations and decisions about how your 18-year-old child should be cared for need to happen BEFORE he/she turns 18. These conversations are not easy. In fact, they’re very difficult and there are many variables to consider. As a result, it’s important to start thinking about your child, his or her needs and long-term well-being now.