When someone turns 18, he has the legal right to make decisions concerning his health care, finances, and other life decisions. In order for these decisions to be legally binding, the person should be competent to understand the decision to be made and the consequences of that decision. However, what should you do if your child has special needs and turns 18?
If your child is diagnosed with a mental illness or disability, it does not automatically mean that he is unable to make decisions. At times, though, your child may not be competent enough to make financial or healthcare decisions. If that is the case, a guardianship may be necessary.
A guardianship should only be considered when no less restrictive options are available. Appointing a guardian over your adult child is a serious issue. Establishing and maintaining a guardianship is difficult, costly, and time consuming. As ordered by the Court, the guardian will make all decisions for the protected person’s personal life and property (depending on the guardianship). This means that the protected person will lose a great deal of independence.
If a guardianship is necessary, there are several factors to consider. Generally, Courts prefer that the parents be appointed as guardian over the special needs child. If the parents are unavailable, then an adult sibling or other adult relative would be preferred. If there are no relatives that can serve as guardian, then a close friend is considered, or (if none) a professional. For more information on guardianship, see our posts Guardianship in Indiana and Establishing a Guardianship in Indiana.
Because a guardianship is costly, is time consuming, and takes away a person’s independence, alternatives to a guardianship should be considered. Some of the alternatives to a guardianship are below and can be used alone or in combination with others:
Special Needs Trust: A Trust designed for beneficiaries who are disabled
Family Guidance: A family member who can provide advice and help to a disabled individual
Assistive or Supported Living Services: Programs, providers, or professionals who can assist the disabled individual in the few areas he needs help with
Durable Power of Attorney: Appointing a legal representative to make financial decisions if the person is competent
Financial Representative: Representative payees or joint ownership of bank accounts to help the person manage his finances
If one of the above alternatives is not practical in your situation, our experienced attorneys can help you navigate the Court process to obtain guardianship of your special needs adult child. In other cases, you may be able to use one of the above options. We can establish a special needs trust for the benefit of your child, or we can draw up a legal Power of Attorney if your child is competent. Call our office or go online to schedule an appointment.