Guardianship of Special Needs Adult
When a child with special needs turns 18, he or she becomes a legal adult. The advent of legal adulthood brings a new set of considerations for parents and caregivers. The child with special needs can now make legally binding decisions, and control medical care, and drive a car. The law presumes that the now-adult has the capacity and understanding necessary to make important decisions. For other families, guardianship may be more appropriately considered later in life, when the adult with special needs’ care and life demands change – such as when an adult parent is no longer able to care for the adult child with special needs.
The prospect of the child’s newfound legal independence responsibility can be scary and overwhelming. Parents fear the potentially disastrous consequences of an adult child’s decisions or whether others will take advantage of the child’s vulnerability. The child may feel more secure with a parent or caregiver’s ongoing guidance and protection. Yet in other cases, the child may be thrilled by the prospect of independence, the ability to choose their own path, and refuse their parent’s involvement. For some of these children, unbridled independence leads them to purchase automobiles, ignore medical treatment, gift or “loan” money to friends, or enter relationships that isolate and take advantage of them. The person who is ‘somewhat’ independent can be especially at risk.
Assessing the Person’s “Ability”
How do we balance the child’s need for independence with the responsibility to protect? In some cases, it may be clear that a child needs and wants assistance in the form of a Guardianship. In other cases, children may be somewhat independent but could still benefit from and cooperate with a Power of Attorney relationship.
Each child’s abilities and needs are so different; deciding whether to pursue guardianship is not always a clear-cut decision. We encourage families to reflect on their family members’ general decision making ability as they consider guardianship:
Can this person:
In some cases, the person may have good decision making skills, but for other reasons (such as mental illness or emotional reasons) the person may want a parent, sibling or friend to have legal guardianship of them.
Assessing the need, desire and feasibility of guardianship is truly a case-by-case discussion that we conduct with every family.
Powers Of Attorney
Powers of Attorney allow a person to designate another (parent, caregiver or family member) to help them make medical or financial decisions. Known as “Powers of Attorney for Health Care” and “Powers of Attorney for Property,” these are short documents that do not require court involvement or processes to prepare. Powers of Attorney can address finances, banking, schooling, mental health care, and medical care. However, Powers of Attorney allow the child to continue to act on their own behalf if they wish. If the child and their designated Power of Attorney disagree, he or she can simply terminate the Power of Attorney. Cooperation is key for this strategy to be effective.