Should You Become Guardian for Your Special Needs Child?

Posted on: April 27th, 2012 by Lawrence A. Friedman

[While this article focuses on guardianship for special needs children, similar considerations arise when a spouse, parent, or other loved one’s ability to make important decisions is impaired by dementia, traumatic brain injury, or other condition. We address such guardianships throughout, particularly in the elder law articles and practice area pages. We also plan a future blog post on that topic.]

Why should you consider putting time and money into applying for guardianship over your son or daughter with disabilities? After all, you are the parent; isn’t that enough? In a word, no.

Parents have the right to make major decisions for the child and obtain confidential information regarding a child’s health, finances, education, etc. while the child is a minor (typically under age 18). However, once your son or daughter becomes an adult (18 and over in most states), you no longer are entitled to most information subject to privacy laws, and health care providers may require your child’s consent to provide non-emergency medical treatments. While this dichotomy is understandable as children without disabilities become adults, how can you protect your child if he/she can’t make significant decisions or give informed consent to medical care or release of records? That’s where guardianship comes in.

A guardian controls health care, residence, and other major concerns of a person for whom he is guardian (“ward”) in similar manner to a parent’s authority over a minor child. However, to become guardian, a parent must prove the child can’t make important decisions. In New Jersey and New York (as well as most other states) a parent who seeks guardianship must apply to the courts and support his/her guardianship claim with doctor/psychologist evaluations. While the child has an opportunity to contest the application, opposition is uncommon and the court typically appoints the applicant as guardian. As court appointed guardian, you can make important decisions to further the safety and welfare of your child with serious disabilities.

Nevertheless, guardianship isn’t for everyone. If your child has only physical disabilities or otherwise can make major decisions guardianship would not be appropriate. If you are unsure whether your child with disabilities needs a guardian, we can guide you through this crucial concern. FriedmanLaw has helped countless families obtain guardianship over a loved one with diminished capacities.

As this website provides general information and isn’t tailored to your particular situation, it doesn’t constitute legal advice and may not take into account rules and exceptions that affect you. Although updated from time to time, this website may not take account of recent legal developments or differences in laws from state to state. For safety sake, obtain individual legal advice before you act! You assume all risk of acting on information contained in this website. This website doesn’t constitute legal advice, and no attorney-client relationship exists unless FriedmanLaw and you execute a written engagement agreement. Please contact us at 908-704-1900 to discuss engaging FriedmanLaw to help resolve your legal concerns.
Homepage photo: Cows grazing at Meadowbrook Farm, Bernardsville, NJ by Siddharth Mallya. October 23, 2012.
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