Adulthood is a significant milestone in everyone’s life, bringing with it a host of new responsibilities and opportunities. However, for families with special needs individuals, it is a time that requires careful planning and consideration. As children with special needs transition into adulthood, they may require additional assistance to make critical decisions about their health, finances, and overall welfare.
Establishing special needs guardianship is a complex legal process, and it can seem overwhelming, especially when you’re already juggling the demands of caring for a loved one with special needs. It’s a significant commitment, but it’s one that can provide immense peace of mind knowing that your loved one’s interests are being protected.
At The Law Office of Whitney L. Thompson, our team of Houston guardianship lawyers understand the unique challenges associated with special needs guardianship and may be able to help families navigate the legal complexities. Contact us today at (281) 214-0173. The right legal support can make all the difference in preparing for this significant life transition.
Individuals with Special Needs and Privacy Laws
When your child with special needs turns 18, he or she is considered an adult under the law for all purposes. The reason that this fact is important is that all the rights that you had as a parent—access to medical records, finances, and any other documentation—no longer apply because your child is now a legal adult. For this reason, it is critical for you to become your adult child’s guardian, or to appoint someone else as their guardian. Without access to these types of documents or the ability to make critical decisions for your adult child, you will not be able to ensure that they are getting the help and care that they need.
To make sure that there is no lapse in your ability to care for your adult child, you need to speak to a knowledgeable Texas guardianship attorney. They will help you to prepare for your child’s 18th birthday.
Individuals with Special Needs and Criminal Justice
In Texas, when someone turns 17, they are considered an adult under the criminal justice system. This goes for people with developmental and physical disabilities as well. While you cannot keep your adult child from breaking the law, you can protect them in the event that they need legal representation. As your adult child’s guardian, you can become an advocate for your child and make sure that they have legal representation, whether you hire an attorney privately or through the criminal appointment list in your respective court.
Everyone deserves representation when they are suspected of a crime. Give your adult child with special needs the protection they deserve.
Avoiding Exploitation
Unfortunately, we live in a world where exploitation of the most vulnerable members of our society is far from rare. Adults with special needs are more likely to fall victim to fraud, physical and emotional abuse, and other forms of exploitation than other adults. With a guardianship in place, you can continue to monitor your adult child’s finances and living situation to protect them from the bad people of the world.
Individuals with Special Needs and Higher Education
At one time, a person with special needs would not have had a chance to go to college. But times are changing. Many colleges and universities now offer programs and housing that are geared toward those with special needs. With a guardianship in place for your child with special needs, you can make sure that your adult child continues to have the support they need as they seek an education.
Continue to Help Your Child with Special Needs Find Programs and Resources
As a guardian to your adult child with special needs, you can also continue to advocate for them by helping them find local programs and resources that will help them live independently.
| Reasons for Setting Up Guardianship for Children with Special Needs | Description |
|---|---|
| Ensuring Privacy Rights | Guardianship is necessary to make critical decisions and access important documents when children with special needs turn 18 and become legal adults, losing parental rights. |
| Criminal Justice Advocacy | Parents can advocate for legal representation and support their child with special needs in the criminal justice system, as they are considered adults at age 17 in Texas. |
| Preventing Exploitation | Guardianship helps protect vulnerable adults with special needs from fraud, abuse, and exploitation by allowing parents to monitor finances and living conditions. |
| Access to Higher Education Programs | With guardianship in place, parents can ensure ongoing support and assistance for their child’s pursuit of higher education in colleges and universities. |
| Finding Local Programs and Resources | Guardians can continue to advocate for their adult child by assisting them in accessing local support programs and resources that promote independence and well-being. |
Pros and Cons of Guardianship and Conservatorship
Guardianship and conservatorship are legal tools that can be used to provide support and protection for individuals with special needs. This section discusses their pros and cons.
Pros
Guardianship and conservatorship can offer several advantages, especially for individuals unable to make critical life decisions due to their special needs. Here are some of the key benefits:
- Legal Authority: The appointed guardian or conservator has legal authority to make decisions for the individual with special needs, ensuring their best interests are considered. This can be helpful in managing financial affairs and daily activities.
- Protection: These arrangements provide a level of protection against financial exploitation and other forms of abuse.
- Continuity of Care: Guardianship or conservatorship can ensure a continuity of care after the individual turns 18 and parents can no longer legally make decisions for them.
Cons
However, guardianship and conservatorship also have potential drawbacks. While they serve to protect the individual, they can inadvertently create other challenges:
- Loss of Independence: Guardianship and conservatorship limit the individual’s autonomy, as decisions are primarily made by the guardian or conservator. This could potentially lead to a feeling of loss of control over their own life.
- Legally Complex: The process of applying for and maintaining guardianship or conservatorship can be complex and time-consuming. It involves court proceedings, which can be stressful and costly.
- Potential for Misuse: If the guardian or conservator does not act in the best interest of the individual, it can lead to misuse or abuse of power.
In determining the best course of action for a child with special needs, it’s crucial to consider their ability to make decisions and manage their own affairs. Alternatives to guardianship and conservatorship, such as durable power of attorney, special needs trusts, or assisted living arrangements, may be more suitable in some cases. The goal should always be to strike a balance between protecting the individual and preserving their independence and dignity.
How Does a Legal Guardianship Work for Individuals With Special Needs?
Guardianship is a legal process that the Texas probate court oversees. Guardianship is used as a means to protect individuals with special needs from abuse, exploitation, neglect, and other difficulties that they may face if they have to make important decisions about their life and finances
If guardianship is requested, you are basically asking the court to take away the legal rights of an incapacitated individual (or the ward). A guardianship will bestow the legal rights to another adult, which is the guardian.
In Texas, a person is legally incapacitated if they have a health condition that will render them unable to provide basic needs for themselves or unable to care for their financial and physical welfare. Guardianships are often used when a person is or becomes unable to handle their affairs because of a disability. However, the law distinguishes between incapacity and disability. A disability such as paraplegia does not mean that the person is legally incapacitated since paraplegic persons have the capacity to make decisions on their own.
Incapacitation means that a person can no longer care for themselves or their financial well-being. In situations where a person is partially incapacitated and has the ability to care for themselves but is unable to manage their finances and estate, a guardian may have limited rights.
It is important to understand your child or loved one’s needs and abilities before you apply for guardianship. Speaking to an experienced special needs guardianship attorney may also be able to help you understand the rights and responsibilities a guardian may have.
Talk to Me about Guardianship for Individuals with Special Needs
Want to learn more about why you should consider guardianship for your child with special needs? I would love to talk to you. Get in touch today. Contact a Houston estate planning lawyer from The Law Office of Whitney L. Thompson, PLLC at (281) 214-0173.
