Guardianship for a Special Needs Child

Guardianship for a Child with Special Needs

Guardianship is very important to protect the health and safety of a child with developmental disabilities, mental illness, or other diminished capacity.

At age 18, your child becomes a legal adult even if he/she is intellectually or emotionally developmentally disabled or has mental illness. Parents no longer have a legal right to make decisions for a child who turns 18 regardless of the child’s own abilities and judgment. In addition, privacy laws may preclude banks, hospitals, schools, government agencies, and other institutions from sharing information with parents.

To retain authority to make important decisions for your child, influence schooling and health care, and generally continue parental authority once your child turns 18, you need to become guardian. A guardian is appointed by Superior Court on proof that your adult child can’t manage his/her own affairs and needs your guidance. Typically, we prepare the court application and handle court appearances when a client seeks guardianship.

What is a guardianship?

A legal arrangement that a court orders after finding that a person (the “ward”) lacks capacity to make responsible decisions and understand their consequences. The court appointed guardian has authority over decisions with serious consequences, which may include managing the ward’s finances and medical care, deciding where the ward lives or goes to school, and more.

Who can serve as guardian?

A responsible adult with family or other reasonable connection to the ward or a professional such as a lawyer, social worker, or public guardianship agency.

While courts prefer to appoint as guardian close family members like, spouse, parents, children, or siblings, a proposed guardian must be a responsible person that takes seriously the responsibility to manage the ward’s affairs and keep the ward safe. A person can have more than one guardian (co-guardians), and parents or siblings can serve together.

What if my child is high-functioning despite developmental disabilities?

For people who have capacity to make some decisions but not others, the court can order a limited guardianship.

The court can appoint a limited guardian such that the ward has authority over day to day decisions and the guardian handles health, safety, and financial issues. Courts also can give people with mild impairments the right to vote, marry, make a will, or perform other common adult activities.

Even in a full (plenary) guardianship, the guardian should always respect the ward’s rights as an individual, take into account the ward’s wishes, and give the ward as much control as is safe.

How do I apply to court to become my child’s guardian?

By filing various documents with Superior Court in the county where your child resides. To begin the process, your lawyer files court papers that explain why you think your child (or other alleged incapacitated person – “AIP”) can’t make important decisions and needs a guardian and why you would be an appropriate guardian. The court papers also should include reports from doctors and possibly other professionals that support your claims.

The court then appoints a lawyer for the AIP who interviews the AIP and you and reports to the court whether the AIP needs a guardian, the AIP’s wishes, and whether you would be an appropriate guardian. The court-appointed attorney gives voice to the AIP’s wishes and helps preserve the AIP’s right to due process.

Sometimes, when it is clear that the AIP needs a guardian and you appear eminently qualified, a judge may appoint you guardian without requiring you to come to court. Otherwise, the court will hold a hearing, where the judge will talk with the proposed guardians and the AIP and decide what to do. If there is disagreement on whether the AIP should have a guardian or who should be guardian, then there may be more hearings or a trial.

FriedmanLaw is here to help you apply for guardianship. Our lawyers have brought many guardianship cases and even frequently serve as court-appointed attorney. Call or email us today for specific information on your situation.

Glossary

Guardian – Person appointed to make decisions for a ward.

Ward – Person for whom the guardian is appointed. A court can only appoint a guardian if it finds that the ward is incapacitated.

Capacity – Ability to responsibly make serious decisions and understand their consequences.

Incapacitated person – Someone who lacks mental capacity to make serious decisions. Incapacitated young people are typically people who were born with developmental disabilities, such as intellectual disabilities, autism or mental health issues.

AIP – alleged incapacitated person. During a guardianship proceeding, this is the person over whom guardianship is sought. Since the court hasn’t yet made a decision on whether the person is incapacitated, the person is alleged to be incapacitated.