The law presumes that once a child turns 18 (age of majority in most states; check your state law), that child is now an adult who can make legally-binding decisions about his or her health, finances, life. For these decisions to be legally binding, the person must be competent to understand what they are doing, the effects of the decisions they’re making. For some adults with special needs, they do not have the capacity to understand what they’re signing, to what they are agreeing, nor the effects of their decisions.
Many parents of a child with special needs are surprised to learn that once their child turns 18 (age of majority), the parents do not have most of the legal authority that they had when the child was a minor. For example, the parent of an 18 year-old disabled son or daughter cannot access their adult child’s confidential medical records or receive medical information. If their adult child is unable to make competent health, finance or life decisions, then some form of guardianship should be considered so that parents can continue to care for their child as they have for most of the child’s life.
“My child turns 18 soon. Where do I start?”
Your first decision will be to determine whether your child needs a guardian. Not every person with a disability needs a guardian, even someone with cognitive or intellectual disabilities. Parents know their child best, but consider this list when deciding whether—and what type of—a guardian is needed:
- Will your child seek medical care if he is sick or injured?
- Does your child understand medical instructions, take medicine properly, understand medical advice?
- Can she provide accurate information about her condition to medical personnel?
- Does your child have a basic understanding of finances? Would he know how to manage a bank account, pay bills, follow a basic budget?
- Can she count money, make change, and safeguard her money?
- Would your child be able to apply for benefits, or be able to locate a person who can help apply for benefits or services?
- Is she able to advocate for herself with agencies providing benefits and services, and understand the care and benefits that are needed?
- Can he purchase what is needed for clothing, food, shelter (get to a store, know what to buy)?
- Does he understand the significance of signing documents?
- Can she make decisions about work, living arrangements, school?
- Is he able to make decisions about personal safety, including locking doors, not talking with strangers, staying in safe areas?
- Does he know how to call 911, or summon help in an emergency?
This list is not exhaustive, and the inability to do some of the above might not signal the need for a complete guardianship but, instead, perhaps a limited form of guardianship, which is discussed below.
“My child needs a guardian. Now what?”
There are several forms of guardianship to consider. Most courts want the least restrictive alternative to be chosen, because guardianship can severely limit the “ward’s” ability to make decisions for himself or herself.
Guardianship is a state issue, and state guardianship laws and terms vary. In Ohio there are three forms of guardianship: guardian of the person (controls where the ward lives, works, attends school, etc.), guardianship of the estate (handles the finances of the ward), and guardianship of the person and estate (handles both personal affairs and finances of the ward).
There are alternatives to guardianship, such as conservatorship (help a competent but disabled person with finances), joint and survivorship bank accounts, representative payees who are designated people to accept payments from agencies, and independent living centers that assist people with disabilities in a wide array of areas.
Guardianship is obtained by having an interested person petition the court for guardianship. You must show why the disabled adult needs a guardian, and why the court should appoint you. You must follow stringent recordkeeping requirements. Proving to the court that the person is incompetent requires an affidavit from a doctor. Oftentimes supporting documentation can be included, such as school records. The court will schedule a hearing before a judge where the petitioner will show why guardianship is needed, and why the petitioner should be appointed.
Search guardianship laws, procedures and standards for your state if you are considering guardianship.
For more information on guardianship for a special needs adult in Ohio, email me at firstname.lastname@example.org.