Adult guardianship is the legal action in which a guardian is appointed who will make personal decisions on behalf of your special needs child. The arrangements include issues such as where they live, who they might live with, and what medical treatment they receive. Appointing a guardian is a serious issue as the special needs child will lose a great deal of their independent authority. Guardianships can also be difficult, costly, and time-consuming to establish and maintain within the court system. Generally, it is better to make a hybrid plan of the less restrictive options like special needs trust, family guidance, assistive or supported living services, durable power of attorney and financial representative.
An adult conservatorship is a legal action in which a conservator is appointed to make the decisions regarding an adult’s financial world, including estate and all income. Often the guardian and conservator is the same person. This individual can be named after the parents obtain an official opinion from a physician stating the reasons for the conservatorship necessity and present it to the court. In effect, the adult child must exhibit a cognitive inability to direct their own financial, medical, and personal affairs before a guardianship and conservatorship are deemed appropriate. Generally, adult guardianship and conservatorship is the right thing to do when a special needs child cannot live independently.
In the event, your child’s situation is best suited to this type of oversight and control the process is usually begun about six months before the child’s 18th birthday. These six months allow adequate time to obtain the necessary medical, psychological or psychiatric opinions required as well as obtain the input from a guardian ad litem (a court-appointed representative to protect the rights of the “adult child”) and prepare the court petition for the appointment of a guardian and conservator.
The most common alternative to guardianship and conservatorship is powers of attorney. In this instance, a legal document provides for a person (your “adult child”) to appoint an individual to make decisions and take actions on behalf of that person. Essentially this allows the adult child to delegate authority to one or both parents and name successor agents if the parent was unable to perform on behalf of the adult child’s affairs. There are two types of powers of attorney to use in place of a guardianship and conservatorship. The first is an Advance Directive/Health Care Power of Attorney and the second is a Durable General Power of Attorney.
An advanced directive/health care power of attorney provides the agent with the ability to make decisions about medical affairs for your special needs child from day to day health care up until the end of life decisions. A durable general power of attorney permits an agent to make decisions about your child’s financial and administrative affairs. If these two documents are drafted, and the right agents selected a guardianship and conservatorship is not necessary. The benefit is the lower cost of securing these powers of attorney and that there is no annual reporting to the court system unless the special needs child can make that specific request. The appointing of power of attorney can be kept entirely private from the court system so long as your child demonstrates an adequate facility for oversight and understanding. The special needs child must be able to understand the nature of power of attorney consciously. They must realize the authority designated to agent control when signing the document. They must also understand the broad or limited scope of a power of attorney, the possibility to revoke a power of attorney, and that a power of attorney will continue if your special needs child becomes incapacitated.
Trust, conservatorship, guardianship; the choices are complex and legally technical. Meeting with a trusted elder law counsel will help navigate the best approach for your family and your special needs child. It is essential to get a plan in place that allows for flexibility, and that will afford you peace of mind. Contact our office today and schedule an appointment to discuss how we can help you with your planning.