Having a child with special needs provides so many special circumstances.  One such circumstance is when that ‘child’ turns age 18 (when your child turns age 18, however, because of a disability is unable to make his/her own decisions) you might want to consider obtaining a Guardianship over that ‘child.’

            According to the law, any person age 18, is of the legal age to make his/her own decisions, including important medical and educational decisions.  At age 18, the individual is legally an adult.  That adult is then given all rights associated with adulthood.  In the case of a child with special needs, it may not be appropriate for that child to make such decisions.  Without the proper paperwork in place, it will be automatic that those decisions would be made by the individual with special needs. 

            For example, once an individual turns age 18, HIPPA protections provide that medical information must remain confidential unless that adult consents to the release.  In the case of an individual with special needs, the medical professionals will keep that individual’s medical information private and may not even honor a release from the individual because the person lacked the capacity to execute the release.  This would then mean that the individual with special needs would not have to discuss any medical issues with his/her care team, leaving the care team at a significant disadvantage in terms of that individual’s care. 

            In order to ensure that as parents with children with special needs, the appropriate decisions are being made, a Guardianship is the legal avenue to provide that protection.  A Guardianship is a legal responsibility for the care of someone who is unable to manage their own affairs.  This Guardianship ensures that rather than deferring to the individual with special needs to make decisions, the appointed person can make those decisions on the individual’s behalf.  There are two different types of Guardians.  There is a Guardian of the Estate, charged with overseeing the individual’s financial wellbeing, and the Guardian of the Person, charged with making decisions regarding the continuing care of the individual.  These are mutually exclusive, meaning that a Guardian of the Person can be appointed without a Guardian of the Estate and vice versa.  The general focus in probate court, where these cases are heard, is to provide the individual with as much freedom and autonomy as possible, provided his or her ability to make any such decisions. 

            Simply because the ‘child,’ turned age 18, does not mean that a Guardianship is automatically necessary.  There must be careful consideration as to whether that individual with special needs truly can make his/her own decisions or whether the individual lacks the capacity to do so.  Once a Guardianship is in place, the Guardian is tasked with making these important decisions and the individual under the guardianship, or the Ward as is often referred, loses a great deal of independence. 

            Many critical transitions are occurring as a child with special needs turns age 18.  That child might be entering into a transition program at school or applying for Social Security Disability benefits, however, without the proper Guardianship in place, that person with the disability gets to make these decisions on their own.  Determining whether a Guardianship is proper prior to the individual turning age 18 is critical.  Ideally, a Petition for Guardianship should be filed prior to the individual’s 18 birthday with enough time for the Court to make a final determination. 

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This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.


This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.