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. It is important to speak with an experienced estate planning attorney before you make any decisions for your child’s future.
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).
How does Guardianship work for an adult with special needs?
Texas’ guardianship process is administered by the probate court. It’s used to protect incapacitated or vulnerable adults (and minors in some cases) from abuse, neglect, and other difficulties that could arise if they have to make difficult decisions about their lives and finances.
When you apply for guardianship, you are asking the court to:
- Remove the legal rights of the incapacitated or the ward;
- Give the legal rights of the ward to another adult, the guardian.
Texas law defines legal incapacitation as a person who is unable to work because of a serious medical or mental condition and if they are unable to:
- Provide for their basic needs (i.e. Shelter, food, and clothing
- They should take care of their physical and financial well-being.
Although guardianships may be necessary in cases where the person cannot manage their own affairs because of a disability or illness, they are clearly different from incapacity. Paraplegia or any other form of disability does not automatically make a person legally incapacitated.
A person can be incapacitated if they are unable to take care of their financial and physical needs. If a person is only partially incapacitated (e.g. when they can care for themselves but are unable to manage their estate and finances), guardianship rights may be limited.
When you seek guardianship, it is essential to first understand the abilities and needs of your child and how they are seen by law.
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.