Guardianship is a choice, but not the way you may think

There are no true “alternatives” to guardianship for a special needs child.  A parent may choose not to seek a guardianship, but for a person who qualifies for a legally appointed guardian, there is no other legal alternative besides simply not having a guardian.

The term “alternatives to guardianship” is used frequently in  estate planning as a means to prepare for the possibility of incapacity later in life, through dementia, alzheimers, or other disease or disability.  By putting in place powers of attorney and other tools, most people can avoid the need to have a guardian appointed for them if they become unable to manage and take care of their own affairs.  This planning process provides an “alternative” to guardianship later in life.

But for children with developmental disabilities, there is no opportunity to prepare in advance.  Those that do not have the ability to manage and take care of their own affairs have never had that ability.  The only question, when they reach age 18, is whether or not they need guardianship.

When a child turns 18, Texas recognizes them as an adult, with all the rights and responsibilities of self-determination that entails.  Mom can no longer insist on coming into the doctor’s office with them, dad can no longer call the school to find out if they are turning in all assignments, and no one other than the child – now adult – can sign or void a contract in their name.

In other words, parents serve merely an advisory role after age 18.  And they serve completely at the discretion of their child.

The problem is, if the child who has turned 18 does not have the ability to understand and make decisions on their own, even with advice, then all the advice in the world may not keep them safe.  If your child has a developmental disability, this can cause serious problems.  If your child’s disability means that they are not able take care of themselves – cannot substantially provide for their own physical, financial and medical care – because they do not have the physical or cognitive ability to do so, then they are at significant risk being out in the world making their own decisions.

If your child is likely to reject medical treatment because they don’t understand the benefits, or if your child is likely to turn over all their money to a scam artist who is willing to take advantage of them because they don’t understand what is happening, or if your child is so impulsive that they may act without even considering the consequences or any previous decision they may have made or advice they have received, your child is at risk without a guardian in place.

People over the age of 18 who have a disability that prevents them from having the ability to understand and manage their own financial, medical, and daily living affairs should have a court appointed guardian who can make sure they are cared for. The guardianship should only cover the areas in which they are unable to function on their own, so a guardianship may be “full” or “partial,” depending on the individual.

There are some situations in which a parent may choose not to seek guardianship over a child who otherwise qualifies.  Those situations work only as long as the child is cooperative or unable to express an opinion, or as long as others accept the situation.  But if a medical office, or a service agency, is uncomfortable letting a parent speak for their incapacitated child without legal authority, then a guardianship is the only way to overcome that problem.

A child turning adult who does have capacity to make their own decisions and care for themselves in one or more areas can enlist others to help them.  This may be an informal arrangement where they simply ask mom or dad for help, or a formal designation of authority by signing a power of attorney, medical power of attorney, and other information releases.  However, the person signing these documents retains their right to conduct their own business, and can revoke or change the documents at any time.   A Supported Decision Making Agreement is another way to formally agree to help and be helped.  It emphasizes to a special needs adult the importance of using the support system he or she has, but it does not provide anything in addition to other formal documents and is not a substitute for guardianship.

For help figuring out what is best for your child, or to get started preparing guardianship or other documents, give us a call at 512-804-9934.

Leave a Reply

Your email address will not be published. Required fields are marked *