Raising a child with special needs presents various challenges that require careful consideration. One of these challenges arises when the child with special needs turns 18, as they are legally considered an adult. However, due to their disability, they may lack the capacity to make independent decisions. In such instances, it may be appropriate to explore obtaining legal guardianship after the child turns 18.
Understanding the Role of Legal Guardianship for Individuals with Special Needs
According to the law, once a person reaches the age of 18, they are legally an adult with the right to make their own important decisions related to healthcare and education. However, for individuals with special needs, their ability to make independent decisions may be affected. Without the proper paperwork in place, the default option is to grant full decision-making power to the individual with physical and/or mental disabilities. A Guardianship grants the designated guardian the legal responsibility of making decisions and providing care for the person to ensure appropriate choices can be made.
For example, once an individual turns 18, HIPAA protections require that medical information remains confidential unless that adult consents to the release. In some situations, medical professionals are unable to honor release requests for an individual with certain disabilities, because the person lacked the capacity to execute the release. This means the individual with a disability 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. By obtaining a Guardianship before the individual turns 18, the appointed guardian can legally make decisions and take care of the individual’s needs, including medical decisions, without any confidentiality barriers. This can ultimately improve the quality of care for the individual with special needs.
Guardian of the State VS. Guardian of the Person
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.
Deciding If Legal Guardianship is Right for Your Situation
Simply because the ‘child,’ turned 18 years old, 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 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 18th birthday with enough time for the Court to make a final determination.
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