Parents accustomed to making most decisions for their child with special needs confront a dilemma when their child reaches the age of majority. In most states, children obtain decision-making authority upon turning 18, and this rule applies to everyone, regardless of their disability status. What to do once a child reaches 18 depends on the child’s capacity for making the correct choices as an adult.
If a child cannot make his or her own decisions regarding personal or financial matters, the most likely path for parents is to petition for guardianship. This process involves hiring an attorney and providing proof of the child’s legal incapacity. At the conclusion of the process, if the petitioning parent proves the case, the court declares that the child is incapable of making decisions alone and appoints the parent as guardian. Following appointment, the guardian must make periodic accountings to the court, reducing the risk to the child but also slightly decreasing parental control of their child’s actions. Courts typically require that guardians ask for court approval before making any large-scale decisions regarding a ward’s finances or living situation.
Alternatives to guardianship exist that can help avoid the cost and red tape of guardianship. So long as the 18-year-old understands, the individual may execute a durable power of attorney, giving an agent the power to make many financial decisions and create a healthcare proxy designating an agent to make healthcare decisions. These tools, in tandem, are usually enough to prevent a parent from having to resort to guardianship if their child’s decision making ability becomes more limited later in life.
Harry S. Margolis practices elder law and special needs planning in Massachusetts and is a co-founder of the Academy of Special Needs Planners.
Eric Prichard is a freelance writer who focuses on special needs and elder law. He is also a licensed Massachusetts attorney.
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