Guardianship
As a parent you make many decisions on behalf of your minor child. However, once your child turns 18 you no longer have the legal authority to do so. Having a child with special needs, a parent is faced with the decision of how best to continue to provide care. If your child cannot make financial decisions for themselves, if they are not in a position to ensure that they receive appropriate medical care, or they are unable to manage some of the daily tasks of life, then a difficult decision must be made.
Were you aware that once your child turns 18 you no longer have the legal authority:
- To continue managing your child’s finances or to work with a financial institution on their behalf
- To obtain insurance information or coordinate care
- To work with health care professionals to make medical decisions or maintain access to their health records
- Have access to the child’s educational records or enroll them in school.
In the event that any of the issues above are true then guardianship may be an appropriate action to protect your child. Guardianship is the legal relationship created when a guardian is appointed to care for an adult with a disability, who by reason of their disability, cannot care for themselves.
By establishing guardianship you have the ability to aid your child in these important decisions. In addition, it allows a parent to protect a child who may, unfortunately, become a target of others. This can be particularly important in regards to financial matters.
This does not mean that guardianship is always appropriate. For parents of a child with special needs approaching age 18, guardianship may be the most hotly debated topic in the home. Why the debate? By having a guardian or conservator appointed, some or even all of a person with disabilities rights are removed. It is not a decision to be taken lightly, and ultimately, it may be one of the most important decisions you make when providing ongoing care for your child.
It could be that a form of limited guardianship, over health care or financial matters as an example, is more appropriate. This would allow a named guardian to support a child in making good decisions over specific matters, without taking the more absolute step of full guardianship. Full guardianship ultimately may limit the child’s independence in ways that are not necessary, such as removing the child’s ability to vote. For others conservatorship (where a conservator is appointed to manage financial matters) may be a more suitable alternative to address a financial need only. Additional options such as Power of Attorney for financial decisions, or Power of Attorney for health care decisions, can be useful tools in support of the child.
Each of these alternatives has its advantages and disadvantages. It is important for parents to know that they have options, and there is no single answer that is applicable to all situations. Parents must take the time to gain an understanding of these options and make an educated decision on behalf of, or with, their child.
Creating a Financial Game Plan [1]
by Heath Burch, Jan/Feb 2014 issue of PSN, page 32
Common Mistakes Parents Make with Their Special Needs Trusts [2]
by Heath Burch, Jan/Feb 2011 issue of PSN, page 48
Building a Resource Manual for Future Caregivers [3]
by Heath Burch, Jan/Feb 2012 issue of PSN, page 40
A Special Need Planning Timeline: 9 Steps to a Sound Family Plan [4]
by Heath Burch
Balancing Independence with Security Guardianship and its Alternatives [5]
by Scott C. Suzuki, Esq. Jan/Feb 2015 issue of PSN, page 34
Able Account or Special Needs Trust/ Side by Side Comparison [6]
by Scott C. Suzuki, Esq. Jan/Feb 2016 issue of PSN, page 36
Plan Early for Your Child’s Long-Term Security [7]
by Scott C. Suzuki, Esq. Jan/Feb 2017 issue of PSN, page 40
Have you ever heard of Supported Decision Making? [8]
by Chantai Snellgrove
“Instruction Manual” for Your Child with Special Needs [9]
by Chantai Snellgrove
ABLE Accounts and TAXES: What special needs families need to know [10]
by Chantai Snellgrove
Originally published in September/October 2010 issue [11] of Parenting Special Needs Magazine.