I Have a Child with Special Needs, is Guardianship Right for Me?

You've been doing a great job as a caregiver while your child is a minor; however, you may need to navigate the Guardianship/Conservatorship court, or consult with an attorney, once your child turns 18. Sometimes, reaching the age of majority (18) results in banks, benefit providers, and medical providers refusing to work with you for your child's care. Regardless of your child's needs, their age indicates that they are legally an adult with all of the rights that come along with that. Service providers are now under a legal obligation to protect your child's rights and privacy, which means you can no longer act on their behalf without the legal authority to do so. In other words, you will need something that shows you have either been given permission by your child, or the Court, to act on their behalf.

Guardianship or conservatorship may be necessary depending on 1) your child's age, 2) your child's specific needs and abilities; AND 3) your child's assets and income. It is also important to consider whether you're evaluating a guardianship (health and care) or a conservatorship (finances and assets). Both guardianships and conservatorships require court appointment and subsequent monitoring. Other options may be available with or without court involvement.

Measuring Capacity

As stated above, age is not the only consideration in determining whether a Guardianship/Conservatorship is needed. Whether a guardianship is right for you, or not, is dependent on your child's care-giving needs, functional abilities, and ability to make and understand decisions. Least restrictive options may be appropriate, depending on your specific situation. Alternatives to guardianship could include a durable power of attorney, supported decision making agreement, or other protective arrangements. Some medical, psychological, or educational conditions may have larger impacts on your child's capacity.

Capacity is the Court's measurement of whether a person can and/or should make their own decisions. If your child is able to understand and make decisions without any assistance, guardianship would not be appropriate and a durable power of attorney might make more sense. If your child cannot understand or communicate decisions, regardless of assistance, a guardianship may make more sense for you and your family. A guardianship attorney should be able to discuss where your child may fall on this spectrum with you, and explain your options.

Examples and Alternatives to Special Needs Guardianship

The last consideration discussed above, applies only to a Conservatorship. If a guardianship is appropriate under the first two considerations, your child's assets and income should be looked at to determine if a conservatorship is needed. For example, if your child has inherited funds or otherwise obtained or accumulated more than $3,000.00, a court may determine that protection of their funds, by way of a conservatorship, is necessary. Alternatives to a conservatorship that may be appropriate include a durable power of attorney, supported decision making agreement, representative payee, ABLE account, or a Supplemental Needs Trust. Again, the best option for your family is very personal and falls on a spectrum of options that can be discussed with one of The Whipple Law Group's well-versed attorneys.