Planning for adulthood
As the parent of a child with special needs, the first seventeen years involve you managing most of the daily decision making, things such as school, doctors, therapists, caregivers, transportation, shelter, and food.
You do all this not only because you care, but also because you have the legal right to make major decisions on their behalf. However, once your son or daughter turns 18 years-old, the law recognizes them as an adult; and therefore as having the right to make these decisions for themselves.
With so many other things to worry about, we have noticed that many parents of special needs children do not integrate this fact in the planning of their child’s future.
What is guardianship?
One significant question will be whether your child’s circumstances require someone else to be the guardian and make many, if not all, of the decisions you did for them when they were a minor.
Intellectual disabilities, physical injuries and disabilities, and other developmental delays may impair your soon-to-be adult child in managing their daily affairs. And so, they may require the establishment of a legal guardian for these matters.
Being a legal guardian is the relationship established by a court of law between the person who needs help (called the “ward”) and the person named by the court to help the ward (the “guardian”).
Despite your best intentions and desire to act in the best interest of your child it is important to understand that in Texas, a person does not have a guardian until an application to appoint one is filed with a court, a hearing is held before a judge, and the judge appoints a guardian. At the time of the judicial appointment, the person the guardian cares for becomes a ward of the court.
Advantages of guardianship
Some of the advantages to a guardianship is that it protects vulnerable people from those who would abuse or exploit them or neglect providing certain care of them or their assets. The guardian serves as the ward’s advocate in decisions related to where they live, medical care, and who has access to the ward and his or her assets. The guardian will either assist them with the decision-making and in some cases, will be responsible for those decisions on behalf of the ward. This will be determined by the court. The long deliberative process involving the courts offers the maximum protection of the person.
Disadvantages of guardianship
Of course, a parent must consider the disadvantages to guardianship as well. Although guardianships provide the maximum protection, be mindful that the protection makes the guardianship the most restrictive action in efforts to protect a vulnerable person. The ward can lose many basic rights, depending on the type and duration of the guardianship. Family members may lose previous unlimited access to the person and may no longer be involved in decision-making or assistance that was done in the past when helping to raise the child.
And of course, guardianships involve the services of an attorney and a court-process that can be time-consuming and expensive. Because the person becomes a ward of the court, reports and accounting to that court are required annually at a minimum. Letters of guardianship also have to be filed with the court, usually annually to ensure the guardian does not lose authority. Lastly, once the courts appoint guardians, modifying or terminating the guardianship will also require the help of an attorney and another court process.
When to set up guardianship?
A person seeking guardianship of a special needs child should do so around the seventeenth birthday of the child.
There are alternatives to guardianship that are also important to consider because of the myriad of legal responsibilities that come with guardianships. Guardianships are not required in every circumstance, and it is helpful to explore options with an attorney to see what the best fit is for you and your child, especially if the goal of the family has been working towards maximizing your child’s independence as an adult.
For example, if your child only needs assistance with certain decision making, a parent may consider someone who can assist with paying bills and managing the person’s finances without the need of a guardianship, such as through a joint checking account or designating a representative to receive and manage the person’s government benefits. There are many tools short of guardianship to consider, such as a community’s money management program, supported decision making agreements, a living will, a medical power of attorney or a durable power of attorney. Trust funds are also a way of helping with financial responsibilities and obligations.
What questions to consider before consulting with an attorney
Some helpful questions to consider before consultation with an attorney include:
- Can my child communicate his or her own desires and wishes and are those desires and wishes in my child’s best interest?
- Is there adequate support in the community from family, friends and the community to provide the level of supported decision making and care while also protecting your child?
- What government services are being used and are available for future consideration?
- What problems do you specifically wish to use the guardianship to resolve?
- Are there concerns regarding money and government benefits (e.g., acquiring, protecting, managing)?
- Where will the child live? At home? In an assisted living facility? On her own?
Are there medical concerns or concerns about ongoing or future medical decision-making?
- Does the child have the capacity to make decisions? To what degree? What decisions do they need help with?
- Does the children have the capacity to make decisions, but has difficulties in communicating those decisions without assistance?
Get professional legal help
Parenting and caring for a special needs child is an “all-hands-on-deck” matter.
Transitioning both the child and parent for adulthood should not be done alone, on top of the daily challenges. The lawyers of the Ted Smith Law Group stand by ready to assist you in understanding if guardianship is right for your circumstances.