Special Needs Guardianships: Why you must go to court to get control over your own child
Many parents of special needs children are shocked to find out that when their disabled child reaches adulthood, they no longer have a legal right to control or decision making for their child, medically or financially, even if that child is completely disabled. Once a child reaches the age of 18, the law presumes that they are able to make decisions relating to their health and finances. All children over 18 are legally competent in the eyes of the law meaning that their parents no longer have the right to make financial, educational, and health related decisions on their behalf. For many 18 year olds, this is wonderful news. They are ecstatic to finally be free to make their own decisions without requiring input from others. For many special needs children, this presumption means that the adults who they depend on for day-to-day care, can no longer legally make many decisions on their behalf.
To overcome the presumption of competence and gain back decision making powers over their child, parents of disabled children must file a guardianship petition. A guardianship is court proceeding through which an incapacitated person is appointed a guardian to manage his or her affairs. The court will only appoint a guardian of a special needs individual after hearing evidence that the person is incapacitated and deciding, based on the evidence, that there is a need for a guardian.
The process for becoming a guardian of a special needs child, or any other individual who is in need of a guardian, is a two-part process: the adjudication of incapacity and the appointment of a guardian. To rule that an individual is incapacitated, meaning that he or she is partially or totally unable to manage his or her financial resources or meet essential requirements for his or her health or safety, the parent bringing the petition must present supporting evidence. Such evidence usually takes the form of physician's testimony or the presentation of deposition of the doctor's testimony taken in advance of the court proceeding. Only after the special needs individual is deemed by the court to be incapacitated will the court appoint a guardian. In special needs cases, the person seeking to be appointed as guardian is generally the individual's parent, however, any adult can petition to become the guardian of an alleged incapacitated person. Once appointed the guardian will be responsible for managing the day-to-day care and for handling the financial affairs of the special needs individual.
If you are the parent or caregiver of a special needs individual, please contact the experienced guardianship attorneys at McMorrow Law today for a free consultation regarding your guardianship matter at 724-940-0100.