Houston Estate Planning and Elder Law Attorney Blog
The saying “little children, little problems, big children, big problems,” is particularly appropriate for parents of special needs children. Preparing for the next phase takes time, so it’s best to begin the process, once they celebrate their 17th birthday.
One of the many decisions that parents need to make before a special needs child becomes a legal adult, is whether or not the child needs a guardian, or if the parents need a power of attorney, as detailed in a helpful article from Effingham (IL) Daily News, “Teaching parents about guardianship of disabled children.”
Once a child is age 18, the parent is no longer the child's legal guardian.
You should identify the support required for your child and ask what other support they need, while they’re transitioning. Work with a special needs attorney and ask about guardianship. Guardianship is a way to protect an individual who can’t take care of herself, make informed decisions or handle financial assets. An experienced attorney will explain guardianship and alternatives that may be chosen, if the child is capable of making some, but not all, decisions on her own. There are different kinds of guardianships and different kinds of powers of attorney (POA) for estate and health care requirements.
A person can be disabled in some ways, but still be competent to execute the powers of attorney. If the person understands who their family is, who she is, if she’s oriented to time, and she knows who they trust to handle their business or health care decisions, then she can probably sign powers of attorney.
A POA is written authorization to represent a person and make specific decisions on her behalf. The child may have a POA over her health care or estate management. A guardianship of the child’s health care or estate management is appointed by a judge, after reviewing physician statements about the disabled person's needs.
Remember that having power of attorney over their child's financial matters, doesn't give parents power over everything. Things not covered in the POA document are things over which the agent doesn't have the authority. A POA can be revoked, when the person assigning it is competent. However, in a guardianship appointed by the court, you have a duty to act, until the court determines otherwise.
You’ll need a physician’s report that clearly states that the allegedly disabled person needs to have a guardian, and the report should include very specific reasons. Guardianship needs to be a narrow as possible. A special needs attorney can guide you through this process to protect your loved one.
Reference: Effingham (IL) Daily News (April 15, 2018) “Teaching parents about guardianship of disabled children”