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Guardianship

Guardianship is an important legal protection for children with special needs and should be considered by parents of children with disabilities as their children approach the age of majority.

When a child turns 18 years old he/she is emancipated and therefore able to make his/her own decisions – decisions regarding educational, decisions regarding medical treatment, decisions regarding financial matters including the ability to enter into contracts, decision regarding vocational matters, and decisions regarding residential matters. When children have special needs that limit their ability to make informed and well-reasoned decisions or fully care for themselves, emancipation can cause difficulties for their families in appropriately caring for them. Consider, for example, a child with special needs who requires a life-saving operation. If that individual is unable to fully understand the urgency and necessity of an operation he or she may decide to not have the procedure; thereby, risking his or her life. Without Guardianship, his or her parents will not be able to make the decision on their adult child’s behalf.

Each state, including New York, and  New Jersey, has promulgated rules that allow parents, or other willing caretakers, to retain decision-making authority over their adult children with special needs.  State regulations permit willing individuals to apply for Guardianship or Conservatorship over their adult children in order to retain the ability to care for and protect their special needs adult children as they have been doing all of their children’s lives. Guardianships can be all-encompassing or, depending on the adult child’s needs, limited, allowing the child to retain the right to make certain decisions on his or her own behalf.

The process of seeking Guardianship is a legal one that requires involvement of the Court System. Courts consider requests for Guardianship seriously, as we are asking the Court to remove the adult rights from an individual. Such removal is a serious determination and one that must not be entered into lightly. The process of obtaining Guardianship is therefore an intricate one that requires the filing of a Guardianship Complaint with the Court and the filing of two certifications in support of Guardianship from two physicians or one physician and one licensed psychologist. Upon receipt, the Court will determine if there is ample evidence on which to proceed with the Guardianship matter. If so, the Court will assign an independent third party to complete an assessment of the appropriateness of Guardianship for the individual in question. Having an attorney involved helps ensure thorough and well-substantiated submissions to the Court, timely submissions to the Court, interaction with the court-appointed third party to help explain the necessity of Guardianship for the individual in question, and submission of all other required paperwork in the Guardianship matter.

The following are some reasons to consider guardianship for a special needs child:

• Education: Unless guardianship is awarded, school districts must consider an individual who has turned 18 to be independent and able to make his or her own decision. Because many special needs children are entitled to educational services through June of the year in which they turn 21, a parent without guardianship may be excluded from IEP meetings and unable to advocate and make educational decisions on behalf of his or her child.

• Healthcare: When a child turns 18 years old, he or she is considered an adult in the eyes of the law. He or she is presumed competent and able to make his or her own decisions. For individuals with disabilities, the ability to make “informed” medical decisions may be compromised.

• Finances: Another concern is protecting an adult child with special needs’ finances. As an adult, people can enter into contracts and therefore obligate themselves financially. For individuals with disabilities, they may not be competent to enter contracts or make other decisions regarding financial matters. For their protection, Guardianship restricts their ability of individuals with disabilities to enter into legally enforceable contracts and makes any contracts they do enter into void.

On a final note, Guardianship cannot be granted until a person is 18 years old. However, the Guardianship application can be made prior to the individual’s birthday such that Guardianship is granted immediately after gaining majority age. Knowing when to file the Guardianship application will help ensure seamless transition from childhood to adulthood with Guardianship.