Guardianship for Grown Kids
An 18th birthday presents unique legal challenges to parents of special kids.
Turning 18 is an important milestone in every person’s life. Reaching the age of legal majority, however, can be a minefield for children with special needs. Before this major birthday occurs, parents must determine whether their child is able to make personal decisions about issues regarding health care and finances. As parents do not have the legal right to make such decisions once their child turns 18, a guardianship may be necessary. The legal process of guardianship allows parents to petition the court to authorize themselves, or a trusted independent guardian, to continue to care for a child with special needs after the age of 18.
A guardian, once appointed by a judge, can make legal decisions for another person. Parents should consider three main issues before hiring an attorney to obtain a guardianship for an adult child with special needs.
1. Is my child “incapacitated”?
A guardian is not necessary for every child with special needs. A judge may appoint a guardian only for an “incapacitated person,” defined in Pennsylvania as “. . . an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”*
In other words, a guardian is appropriate if your child cannot communicate his intentions or understand the consequences of decisions about things like finances, health care, housing or entitlements. A judge will hold a hearing to determine if your child is incapacitated; testimony considered at this hearing typically comes from your child’s doctor. In many cases, written testimony is accepted so the doctor does not have to attend the hearing
2. What kind of guardian does my child need?
If your child can be independent in some areas but not others, it is possible to petition the court for a limited guardianship. It’s important to note that these guardians are not authorized to make all decisions for a person. For example, a guardian does not have the power under Pennsylvania law to commit a person to a mental health facility.
3. Who will serve as guardian?
Often, a parent is the obvious choice to serve as guardian. You might also consider appointing a successor to take over when the parent can no longer serve. In the event a guardian in your personal circle isn’t evident, you can hire a professional guardian, experts who are usually paid an hourly fee for their work. Your attorney can point you in the right direction on this front.
Leah Snyder Batchis and Brian Gondek are attorneys at the Pennsylvania law firm of Frankel & Kershenbaum, specializing in special education.