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.”*

*"Incapacitated person" definitions
In New Jersey,  an “incapacitated person” is defined as “an individual who is impaired by reason of mental illness or mental deficiency
to the extent that he lacks sufficient
capacity to govern himself and manage his affairs.”

In Delaware, an "incapacitated person" is also known as a "disabled person" and defined as someone who “by reason of mental or physical incapacity is unable properly to manage or care for their own person or property, or both, and, in consequence thereof, is in danger of dissipating or losing such property or . . . in danger of substantially endangering [one’s] own health.”

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.

Guardianship for minors
A guardian for any minor child – disabled or not – can be named in a will. When people think about the uncomfortable topic of their death, they often overlook the most important issue: Who will care for their minor children? In the unthinkable event that both parents die, a minor child without a designated guardian is left in legal limbo, lacking a responsible adult who has the authority to make decisions on his behalf.

As a result, it is very important that every person with a minor child have a last will and testament that names a guardian for that child. If more than one person is named, the will should indicate how to resolve disagreements between them. While guardianship provisions in a will are presumed to be in the best interest of the child, if the guardianship is contested, a judge will ultimately have to decide what is in the child’s best interest and may override the deceased parents’ wishes. So it’s important to speak with your proposed guardian(s) and other family members about your choices to help avoid unnecessary conflict and confusion in an already difficult and sad situation.

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.

Categories: Special Needs Parenting