As an attorney and a father of two special needs children, I uniquely understand the necessity of becoming a legal guardian for my children as soon as they reach eighteen years of age. Many individuals, however, may not understand the importance and necessity of completing this process. While your child is below the age of eighteen, you have unfettered access to their medical records, school records, and any financial information related to social security, Medicare, medical assistance, or any similar program. All of this access, however, disappears if you are not appointed guardian or granted a power of attorney by your child after they turn eighteen. This article will focus on obtaining a guardianship, as frankly, a power of attorney is, at best, a marginal solution if you have a special needs child.

The main purpose of obtaining a guardianship is to put you in the position that you were in immediately before your child turned eighteen. This means that you would once again have unfettered access to their medical records, school records, and any financial information related to social security, Medicare, medical assistance, or any similar program that you enjoyed before they legally became an adult. For many parents, this access is essential to continue assisting their child. There are also other benefits to being named a guardian for your child. Once named guardian, you essentially step into your child’s shoes and have the ability to seek housing, additional financial assistance or supplementary care, and make decisions on their behalf. While there are different levels of guardianship, and the court can tailor the appointment of a guardian to each scenario, the type of guardianship for a special needs child I am referring to is their person and their estate. In other words, such a guardian can make decisions on their child’s behalf and, further, manage their assets or potential assets.

The process of obtaining a guardianship is not overly complicated, however, obtaining competent counsel to assist you is highly recommended. The focal point of any application for guardianship are the medical evaluations performed by two or more physicians, which address the alleged incapacity of the individual for whom guardianship is sought. This is the core evidence that a court will consider to determine if a guardianship is appropriate. Provided the doctors conclude that the individual is either fully or partially incapacitated, the next issue to be decided is who is the appropriate guardian, and further, what level of guardianship is needed. In most guardianship applications there are not disputes as to either the alleged incapacity of the individual, nor who should serve as guardian, however, such disputes can arise. For the purposes of this article, however, we will not address such scenarios.

Once the court has rendered a finding as to incapacity, the court will determine what level of discretion to vest in the guardians and who should serve as guardian(s). In most instances involving special needs children, either one or both parents will be appointed guardian(s). Further, in most instances, they will be appointed guardian(s) of the person and the estate unless there is evidence that their child does have the ability to make certain independent decisions. Prior to their appointment, however, the proposed guardian must pass a background check and judgment search. Further, the court will likely impose reporting requirements that require the guardian to file annual updates with the court to ensure fair treatment of the incapacitated person.

The purpose of this article was to provide a brief overview as to the necessity of obtaining a guardianship for your special needs child immediately after they turn eighteen. It is suggested that planning for this process should commence right after they turn seventeen to ensure that the application is timely filed. It is further recommended that competent counsel guide you through this process to ensure that it is properly and timely completed.