Guardianship

Whether your child has a disability or not, when she turns 18, she is a legal adult. Adulthood comes with new rights, responsibilities, choices and consequences, as well as new levels of legal privacy protection (such as, doctors no longer have to share personal health information with parents). Parents do not remain their child's legal guardian past the age of 18 unless they have gained legal guardianship of them as an adult.

Thinking about whether a guardianship is right for your family is a vital part of planning for your child’s future. If your teen has disabilities that do not allow him to make decisions in his own best interest, or handle/direct his own needs, you will want to look into guardianship. Guardianship gives the parent or caregiver the legal right to make choices for their child after age 18. Guardianship is a court process, and cases are only seen after the individual’s eighteenth birthday.

It is recommended that the guardianship application process be started before the young person turns 18. This can take time, and being set up ahead of time can help it go smoothly. This page will discuss what guardianship is, evaluating the need for guardianship, the role of the courts, and contingency planning.

Guardianship is a legal arrangement in which a person or persons are legally approved to make choices for another person. It involves choices about basic needs, like food, clothing, shelter, health care, and money management. Being a guardian is a serious decision. Based on the laws of your state, a guardianship order may have to state whether the person who is deemed incapacitated (not able) will no longer have certain civil rights, such as the right to vote, drive, or marry. But these arrangements can also be flexible enough to allow your young adult a new level of independence if she is able and ready for it.

Guardianship is a court-appointed role, but before any legal proceedings start, the young adult’s skills, abilities, and deficits will be measured and documented to decide whether a guardian is needed. Deciding the need for guardianship will focus on the individual's ability to make decisions and understand the results of those decisions. For many young adults with special needs, the need for a guardian is clear, but you’ll still have to petition for it. You’ll need to gather proof supporting your claim that your adult child needs a guardian, which may be as simple as getting together health records and recommendations from teachers and health care providers.

Once the need for guardianship is set, a court hearing is held, in which an lawyer will represent the disabled person. The parents or caregivers will be represented by a different lawyer, or they may choose to represent themselves. The court may assign either a "limited guardianship," to help make only some decisions (like health or financial) or "full guardianship," allowing the guardian to make all decisions needed for the person.

In some states, only a "limited guardianship" is granted unless the need for "full guardianship" is proven. Some states call for the appointment of a "conservator" who will make financial or estate planning decisions if needed, and in other states the guardian will act as conservator. The court may place an "incapacitated person" under a guardianship, conservatorship, or both. In some states, guardians must report to the court once a year about their guardianship actions, the health of the person, and what is going on with the estate.

It is very important for families to talk about who will have guardianship if the guardian is no longer able to serve in that role. The guardians must put their wishes in their will, so it’s of great value to plan ahead and take action to make sure there is security, safety, guidance, and care for your child’s future.