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Does a Child with Special Needs Need a Guardian?

Posted on: April 13th, 2016
Does a Child with Special Needs Need a Guardian?

Parents of all children are the natural guardians until the child reaches 18 at which point that child transforms in the eyes of law into an adult.  Often parents are shocked to learn they have no rights to speak with doctors or ask for school records without the permission of the 18 year old “child”. They (parents) have no decision making authority for their off spring although that off spring may still be living at home and receive support from the parent.   

For the parents of children with different/special needs the 18th birthday presents the same reality but may require a different response.  Some parents may wonder they should pursue guardianship for their special / different needs child.  One of the important things to consider before making a decision is to determine whether your child can make decisions for themselves.  Diagnosis of a disability or mental illness does not necessarily mean that a person cannot make decisions.  If your child is capable of making decisions about their person and or property it is important to allow them to have that autonomy

Any competent adult may prepare advanced directives (power of attorney, health care surrogate, living will). In these documents the principal (in our scenario the young adult) appoints someone to serve as their agent to help with management or their property or health care decisions.  The special /different needs child may be able to prepare these documents which would allow them to have help if needed but still maintain their own decision making authority.  Special Needs Trusts provide the means to safeguard assets for the person with special/different needs.  They can assure funds are available for the individual and maintain government benefit eligibility.

If the young adult is unable to make decisions about their person or property and they have reached 18 years a guardianship may be the most appropriate option.  There are different types of guardianship and an attorney familiar with this area of the law will be your best resource to identify the guardianship type most appropriate to the situation.
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