When a child with special needs turns 18, parents must begin to think about sensitive issues such as long-term care planning and how to legally stay in control. Adult guardianship is one such vehicle that allows parents to have legal and financial authority over their children when their parental rights would otherwise be terminated. Petitioning to become a guardian is a lengthy legal process, but it may be appealing to parents still caring for young adults with disabilities who aren’t ready to be independent. Before beginning a petition for legal guardianship, consider the following first:
Your child loses a great deal of freedom.
If you gain guardianship, your child loses the freedoms he or she would have as an adult. The child will lose the right to handle his or her own finances, make healthcare decisions, choose residency, or make any other decision that the court has given the guardian power to decide. For young adults that are high-functioning and could possibly lead an independent life, this loss of freedom is a very real concern that families must consider.
You have a great deal of responsibility.
Your responsibility may be an extension of the things you did for your child when he or she was young. As a guardian, you have a responsibility to care for whatever the court has entrusted to you, and failing to do so could bring legal consequences. If you’re responsible for your adult child’s finances and you mishandle them or use his or her SSI fraudulently, you may not only lose guardianship but be liable for civil damages or be criminally charged.
Your rights could be limited.
Unlike guardianship of a minor child, guardians only gain authority over the things the courts give them authority over, and nothing the petitioner doesn’t ask for. Therefore, if a parent only has medical guardianship, for example, and not financial guardianship, that parent cannot make financial decisions on the child’s behalf. Likewise, your guardianship doesn’t allow you to keep your child from engaging in adult behaviors you would prefer they didn’t. They’re free to do whatever they’re otherwise entitled by law, like drinking, smoking, dating, or having sex.
Your guardianship isn’t transferable and ends with you.
Guardianship either ends when you die or when the court ends it. You can’t pass on guardianship of your child with special needs to a spouse or to a surviving adult child. They can petition the court and go through the same guardianship process – and expense. The court grants guardianship to someone both by how much the ward needs a guardian, and by how fit the petitioner is. Anyone who wants to be guardian after you must go through the same process that you did.
Are there alternatives?
There are alternatives to guardianship. One is to create a special needs trust to handle financial affairs. The trustee will use the trust to pay for the child’s expenses. If your child is high-functioning and can sign legal documents, he or she can also name the parent as Healthcare Agent and Power of Attorney so the parent can help the child make decisions without the child losing their rights. Many of these alternatives depend on the physical and mental needs of the child and must be evaluated carefully by your legal and medical team.
If you would like guidance on how to pursue a guardianship or a guardianship alternative for your young adult with special needs, contact us at Sechler Law Firm to schedule a consultation.