When a child becomes an adult at age 18, they gain the right to make decisions about their life, their finances, and their health. In some cases, however, obtaining a special needs guardianship as their parent or caregiver is necessary for their well-being. Such a guardianship can control some or all of the legal decision making power for the adult ward.
As a family law attorney whose office handles guardianship and estate planning, I wanted to discuss this topic to help others understand how it works. If you think you may need to become a legal guardian for an adult with disabilities in the future or need to make that decision now, here are some considerations to think about. It is important to speak with an experienced Houston guardianship attorney to understand your guardianship duties before making any decisions for your child’s future. For personalized guidance tailored to your specific situation, contact The Law Office of Whitney L. Thompson today at (281) 214-0173 to schedule a consultation.
Does My Child Need a Special Needs Guardianship?
The first thing to decide is whether the person in question needs a guardian. It’s important to understand that a diagnosis of mental illness or cognitive disability does not automatically mean that someone needs another person to make decisions for them. There are two types of guardianship: guardianship of the person and guardianship of the estate. Guardianship of the person is when someone needs help making decisions about their living situation, healthcare, and other personal matters. Guardianship of the estate pertains to financial and legal matters, such as paying bills or hiring an attorney.
Most courts consider special needs guardianship a last resort and attempt to find alternatives that grant the individual some power to make their own decisions about their life. A limited guardianship granted by the courts only allows a guardian to make certain decisions.
Types of Guardianship and Conservatorship
In guardianships and conservatorships, various types are designed to address the specific requirements of individuals, particularly those with special needs. The following are some key types:
- Guardian of the Person: This guardian assumes the responsibility of overseeing the well-being of an individual with special needs. Their duties encompass ensuring that the person receives appropriate care, supervision, and accommodation. Their role includes making decisions related to medical care, vocational planning, and education. However, this guardian is not required to live with the individual, provide daily supervision, or use personal funds for the individual’s care.
- Conservatorship or Guardian of the Estate: This role is necessary for individuals with special needs who cannot manage their finances and have income beyond benefit checks. The conservator assumes responsibility for managing the financial resources on behalf of the individual and is required to submit an annual accounting report detailing the status of their assets to the court.
- Limited Guardianship: This type of guardianship is specifically limited to particular decision-making areas, such as medical treatment, allowing the individual to make other life decisions independently. It is applied in a manner that is least restrictive for individuals with special needs.
- Temporary Guardian or Conservator: Often appointed during urgent situations when immediate decisions are required, temporary guardianship typically lasts up to 90 days. It is common for states to require a permanent guardianship request to be filed alongside a temporary appointment.
- Successor Guardian: This person, designated in legal documents by the parents of a child with special needs, is appointed to assume guardianship in the event of the parents’ death or inability to provide care. A special needs lawyer may recommend considering a co-guardianship arrangement with the successor guardian while the parents are still alive.
Selecting a guardian involves evaluating the individual’s best interests and welfare. For more comprehensive information and guidance, it is recommended to consult with a Houston guardianship attorney who can provide tailored advice based on the unique circumstances of the individual requiring guardianship or conservatorship. Contact The Law Office of Whitney L. Thompson for compassionate and knowledgeable assistance.
Applying For Special Needs Guardianship
Acquiring guardianship for a child with special needs is critical to safeguard their best interests and ensure proper care. However, the process of obtaining guardianship can vary in complexity depending on your specific circumstances. If you are considering seeking guardianship, it is important to understand the necessary steps involved in initiating the process.
The first step is to have your child’s doctor fill out a Physician’s Certificate of Medical Examination, which outlines areas in which your child requires supervision, such as dressing, feeding, financial decision-making, and driving. You may also be required to demonstrate that you have explored less formal support options, such as joint-decision-making agreements or becoming a representative payee.
After filing the guardianship petition in court, an attorney ad litem will be assigned by the judge to represent your child’s interests during the guardianship process. The attorney ad litem will assess whether guardianship is necessary or if other supports and services could work for your child. They will speak with your child to discuss guardianship law, your reasons for seeking guardianship, and your child’s wishes. The attorney ad litem may also review medical reports and speak with your child’s school, caregivers, and other family members.
After completing their investigation, the attorney ad litem will submit a report to the court with their opinion on whether your child requires a guardian. If the judge grants guardianship, they will consider your child’s preferences when choosing a guardian. The court will provide the guardian with a letter of guardianship, which can be used to communicate with schools, banks, health insurance providers, doctors, and other necessary entities.
Alternatives to Special Needs Guardianship
Guardianship of an adult with cognitive disabilities or mental illness is not always the best option. Fortunately, you can choose one of the many alternatives to special needs guardianship that exist and even combine them in whatever way best serves the interest of the person being cared for. Alternatives to guardianship include:
- Creating a special needs trust
- Appointing a durable power of attorney
- Appointing a financial representative
- Hiring assisted living services
To figure out the option that is best for your situation, it’s critical to consult with a professional such as an attorney.
Power of Attorney Vs. Guardianship for Disabled Adults
When considering legal arrangements for disabled adults, understanding the distinction between Power of Attorney (POA) and guardianship is crucial. Both serve important roles in managing the affairs of individuals who may need assistance, but they operate in distinctly different ways with unique implications.
A Power of Attorney allows an individual, known as the “principal,” to appoint an “agent” or “attorney-in-fact” to make decisions on their behalf. This legal document is versatile, allowing the principal to specify what decisions the agent can make based on their personal needs and circumstances. The principal retains the ability to make decisions as long as they are capable, making POA a preferred choice for those who anticipate future incapacity but are currently able to participate in decision-making.
Guardianship, however, involves a court appointing a guardian to take responsibility for the personal and financial decisions of another person, referred to as the “ward.” This approach is generally pursued when the individual is unable to make safe or sound decisions due to mental or physical disabilities. Unlike POA, guardianship involves ongoing court involvement to oversee the guardian’s actions, providing an added layer of oversight and ensuring that decisions made on the ward’s behalf are in their best interests.
Choosing between POA and guardianship depends on the specific needs and capacity of the individual concerned. While guardianship offers comprehensive oversight for those who need it, a Power of Attorney provides a flexible and less intrusive alternative, allowing individuals to maintain greater control over their life decisions. This decision should be guided by thoughtful consideration of the individual’s current competencies and future needs, often in consultation with legal counsel. Contact The Law Office of Whitney L. Thompson today to speak with an experienced Houston guardianship attorney and make an informed decision.
How to Get a Special Needs Guardianship through the Courts
Obtaining a guardianship through the courts begins with a petition. The petition includes information about the person such as a description of their disability, their relationship to the proposed guardian, and the reasons that the courts should grant the guardianship.
The next step of the process is a hearing before a judge. During the hearing, the petitioner must prove that a guardianship is necessary, that no other alternatives are sufficient, that the petitioner is capable of carrying out the duties of a guardian, and that no one else has a better claim to become the person’s guardian (for instance, a parent or another close relative).
How Does Guardianship Work for an Adult With Special Needs?
Texas’ guardianship process is administered by the probate court. This degree of oversight is used to protect incapacitated or vulnerable adults (and minors in some cases) from abuse, neglect, and other difficulties that could arise if they have to make difficult decisions about their lives and finances.
When you apply for guardianship, you are asking the court to:
- Remove some legal rights of the incapacitated or the ward;
- Give jurisdiction over exercising those legal rights of the ward to another adult, the guardian.
Texas law defines legal incapacitation as a person who is unable to work because of a serious medical or mental condition and if they are unable to provide for their basic needs (i.e. Shelter, food, and clothing) and oversee their own physical and financial well-being. The primary duty of a guardian is to take care of the ward’s needs in this regard (depending on the type of guardianship).
Although guardianships may be necessary in cases where the person cannot manage their own affairs because of a disability or illness, they are clearly different from incapacity. Paraplegia or any other form of disability does not automatically make a person legally incapacitated.
A person can be incapacitated if they are unable to take care of their financial and physical needs. If a person is only partially incapacitated (e.g. when they can care for themselves but are unable to manage their estate and finances), guardianship rights may be limited.
When you seek guardianship, it is essential to first understand the abilities and needs of your child and how they are seen by law.
Working With a Skilled Houston Guardianship Attorney at The Law Office of Whitney L. Thompson
Due to the often-intricate nature of this process, obtaining a special needs guardianship can be challenging. It is recommended to consult with an attorney to make a plan for how to approach guardianship. At The Law Office of Whitney L. Thompson in Houston, we understand the significance of this responsibility and are committed to providing clear legal guidance through every step of the guardianship process. If you have any questions about special needs guardianship or its alternatives, don’t hesitate to contact us at (281) 214-0173 and schedule a consultation.
| Key Steps in the Process of Applying for Special Needs Guardianship | Course of Action |
|---|---|
| Physician’s Certificate of Medical Examination | Have your child’s doctor complete this certificate outlining areas where your child requires supervision. |
| Explore Less Formal Support Options | Demonstrate that you’ve considered alternatives like joint-decision making agreements or representative payee. |
| File Guardianship Petition in Court | Initiate the process by filing the guardianship petition with the court. |
| Attorney Ad Litem’s Assessment | An attorney ad litem is assigned to assess your child’s needs and whether guardianship is necessary. |
| Attorney Ad Litem’s Investigation | The attorney ad litem investigates by speaking with your child, reviewing reports, and consulting caregivers. |
| Attorney Ad Litem’s Report to the Court | Submit a report to the court with the attorney ad litem’s opinion on the need for guardianship. |
| Judge Grants Guardianship | If approved, the judge may consider your child’s preferences when choosing a guardian. |
| Receive Letter of Guardianship | The guardian receives a letter of guardianship, enabling communication with relevant entities. |
from The Law Office of Whitney L. Thompson, PLLC https://www.wthompsonlaw.com/special-needs-guardianship-a-short-guide-for-parents/
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