When a child becomes an adult at age 18, they gain the right to make decisions about their life, their finances, and their health. In some cases, however, obtaining a special needs guardianship as their parent or caregiver is necessary for their well-being. Such a guardianship can control some or all of the legal decision making power for the adult ward.
As a family law attorney whose office handles guardianship and estate planning, I wanted to discuss this topic to help others understand how it works. If you think you may need to become a legal guardian for an adult with disabilities in the future or need to make that decision now, here are some considerations to think about.
Does My Child Need a Special Needs Guardianship?
The first thing to decide is whether the person in question needs a guardian. It’s important to understand that a diagnosis of mental illness or cognitive disability does not automatically mean that someone needs another person to make decisions for them. There are two types of guardianship: guardianship of the person and guardianship of the estate. Guardianship of the person is when someone needs help making decisions about their living situation, healthcare, and other personal matters. Guardianship of the estate pertains to financial and legal matters, such as paying bills or hiring an attorney.
Most courts consider special needs guardianship a last resort and attempt to find alternatives that grant the individual some power to make their own decisions about their life. A limited guardianship granted by the courts only allows a guardian to make certain decisions.
Alternatives to Special Needs Guardianship
Guardianship of an adult with cognitive disabilities or mental illness is not always the best option. Fortunately, you can choose one of the many alternatives to special needs guardianship that exist and even combine them in whatever way that best serves the interest of the person being cared for. Alternatives to guardianship include:
- Creating a special needs trust
- Appointing a durable power of attorney
- Appointing a financial representative
- Hiring assisted living services
To figure out the option that is best for your situation, it’s critical to consult with a professional such as an attorney.
How to Get a Special Needs Guardianship through the Courts
Obtaining a guardianship through the courts begins with a petition. The petition includes information about the person such as a description of their disability, their relationship to the proposed guardian, and the reasons that the courts should grant the guardianship.
The next step of the process is a hearing before a judge. During the hearing, the petitioner must prove that a guardianship is necessary, that no other alternatives are sufficient, that the petitioner is capable of carrying out the duties of a guardian, and that no one else has a better claim to become the person’s guardian (for instance, a parent or another close relative).
As you can see, obtaining a special needs guardianship can be a complicated matter. It is best to consult with an attorney to make a plan for how to approach guardianship. If you have any questions about special needs guardianship or its alternatives, please don’t hesitate to contact me.