If you have a child with developmental disabilities, you should consider applying to be his guardian when he reaches age 18. At age 18, a child becomes a legal adult and a parent can no longer make decisions for him, regardless of the child’s disabilities or whether he lives with parents. Without a guardianship, banks, hospitals, schools, government agencies and other institutions will have to follow your adult child’s instructions and not yours.

A guardianship is a protective arrangement ordered by a court, in which a guardian is appointed to make decisions for a ward. The guardian’s judgment is substituted for the ward’s, similar to a parent’s power over a child.

To appoint a guardian, the court must find that the ward lacks capacity. “Capacity” means having the mental ability to make serious decisions and understand their consequences. If a person lacks capacity due to a disability or illness, then the person is “incapacitated.”

Since guardianship involves taking away a person’s fundamental autonomy to make decisions for himself, courts are reluctant to appoint a guardian, and there are safeguards in place. The person who wants to be guardian has to prove that the ward is actually incapacitated. You will have to submit affidavits from two doctors who have recently examined your child. Your child will also be assigned a lawyer, who will interview your child and advocate for what he wants.

If your child is able to make some decisions but not others, the court can create a limited guardianship. For example, the guardian might make serious decisions such as on medical and financial issues, but the ward retains autonomy over everyday decisions. Some guardianships also leave specific powers to the ward, such as the right to vote, marry or make a will. In an emergency situation, the court can appoint an immediate temporary guardian or order a specific transaction or other protective arrangement.

If you are interested in applying for guardianship over your child with developmental disabilities, we are here to help. Call us today at (908) 704-1900 for an appointment.