In the U.S., all children reach legal adulthood when they turn 18. Adults, including those with cognitive impairments, are presumed to be competent unless proven otherwise and have the right to make their own decisions. While a parent can petition the court to continue to make decisions on behalf of their adult child and keep their legal guardianship, they must proactively seek that legal authority.
If your child has a disability and is currently in their midteens, now is the time to begin considering what will happen when they turn 18. There are different legal options to explore depending on your child’s needs. The judicial process can be lengthy and arduous, so the sooner you get started, the better decision you will be able to make for your child.
Why consider legal action?
Unless you intervene, your child with autism, Down’s syndrome, developmental disabilities or other cognitive impairments will be responsible for making their own choices once they celebrate their 18th birthday. You may want to explore your legal options if your child relies on assistance to complete daily activities, struggles to understand complex situations or has difficulty communicating appropriately.
Taking legal action can ensure that you are able to continue to guide and protect your child after they reach adulthood. There are options that parents can pursue to continue to make their child’s health care decisions, help with their finances and guide their educational choices. If you seek guardianship or another legal role before your child turns 18, you can avoid the consequences of not having a plan in place and prevent the need to have your child declared incompetent later.
What options do parents have?
While the laws governing guardianship and other agent roles vary by state, there are a variety of arrangements that can be tailored to fit your child’s needs and abilities. Keep in mind that courts generally will prefer the least restrictive option that protects your child’s interests.
Limited Power Of Attorney (LPOA)
High-functioning individuals who only need or want assistance with specific tasks can grant someone the limited ability to act on their behalf with an LPOA. With an LPOA, your child would decide what specific matters that you could represent them in. For example, if your child needs your help managing paperwork to continue their education, they could establish an educational power of attorney. Executing an LPOA would not take away your child’s right to make their own decisions, including the right to terminate the LPOA.
Durable Power Of Attorney (DPOA)
Children with mild or moderate disabilities may be open to granting their parents a DPOA. Adults can choose to designate another person as their agent with the authority to make legal and financial decisions on their behalf. A DPOA would enable you to manage your child’s banking, handle any contracts such as rental agreements and buy or sell property for them. Unlike a general or limited power of attorney, a DPOA remains in effect if the individual becomes incapacitated. If your child chooses a DPOA, they would retain the right to make their own decisions and could change or revoke their DPOA at any time.
Health Care Surrogate Designation
To allow you to continue to make health care decisions on their behalf, your adult child can execute a health care surrogate designation, aka a health care proxy. This designation would enable you to continue to access your child’s health information, speak to practitioners on their behalf and make choices for them when necessary. Your child would retain their legal rights, including the power to change or revoke this document.
If your child will not be able to live independently, you may want to consider petitioning the court to appoint you as a guardian advocate. Not all states have guardian advocate programs, but if yours does, pursuing this designation is less expensive and time-consuming than seeking legal guardianship. Your child would not need to be found legally incapacitated, and if they own no property other than funds from Social Security or other government programs, you would not be required to hire an attorney. A judge would review your child’s health and educational records to assess their abilities and determine which rights a guardian advocate would assume.
If your child is unable to make decisions on their own and your state does not have a guardian advocate program, you will need to petition for guardianship. To have a guardian appointed, a person must be declared legally incompetent by a court. A legal guardian will then be granted the authority to make decisions on their behalf.
There are different types of legal guardianship. Guardianship of the person gives the designee the authority to make decisions regarding the ward’s residence, education and health care, while guardians of the estate aka. conservators are granted the power to manage the ward’s finances. The court may also appoint the same person to manage both the ward’s life and property in what is known as a full or plenary guardianship.
What is the process to seek guardianship?
Before beginning the process, collect your child’s health and education records. You will also need to identify references who can speak to your child’s history, abilities and challenges. To apply for a formal guardianship, you need to hire an attorney to represent you.
Your attorney will file an application with the court, and the court will then appoint an attorney to represent the interests of your child. A psychological evaluation of your child will be conducted to evaluate their competence to independently make decisions. If the court-appointed counsel reviews the findings and agrees to your petition for guardianship, no hearing is necessary. Otherwise, the court will hold a hearing where both sides will present their arguments, and a judge will decide whether a guardian should be appointed.
Each state has its own guardianship laws, so if you are interested in petitioning for legal guardianship, you should research the options and process in your state. However, the National Guardianship Association offers more information and resources for parents and caregivers.
Before your child celebrates their eighteenth birthday, prepare for what that transition into adulthood will mean for them. Consider your child’s abilities, needs and desires as you plan for the future. By exploring your options in advance, you can help ensure your child continues to receive the support that they need.