Why You Need Guardianship When Your Child with Disability Turns 18

As parents, navigating the transition to adulthood for a child with disabilities can be overwhelming, especially when it comes to legal responsibilities. When your child turns 18, they are legally considered an adult, which often comes as a surprise to many parents. This shift can create significant challenges, particularly in making medical and educational decisions. Here’s why securing guardianship is crucial for parents of disabled children as they reach adulthood.

Understanding Legal Capacity

Once a child turns 18, they are presumed to have the legal capacity to make their own decisions, regardless of their cognitive abilities. This means that if your child has an intellectual disability, they may not be able to provide informed consent for medical treatments or make important life choices. In such cases, having a legal guardian is essential to ensure that decisions can be made on their behalf.

Does My Child Need a Guardian?

Deciding whether to become your child’s legal guardian can be a complex question, often depending on their individual capabilities. For some parents, this decision is straightforward; for example, when a child has significant challenges that prevent them from understanding medical choices or making informed decisions about their care. However, if your child demonstrates more independence or capability, the necessity for guardianship may not be as clear-cut. In such cases, it may be beneficial to seek a guardianship evaluation from a professional to assess your child’s ability to make decisions and determine the best course of action.

 The Importance of Guardianship

1. Medical Decisions: Without guardianship, medical providers may refuse to allow parents to make decisions about their child's health care. This can lead to potentially serious delays in treatment.

2. Educational Rights: Guardianship allows parents to advocate for their child's educational needs, including signing Individualized Education Plans (IEPs) and ensuring that appropriate services are in place.

3. Financial Management: Guardianship can help parents manage financial matters, including government benefits and other resources that their child may be eligible for.

The Guardianship Process

Securing guardianship of a person with an intellectual disability is not a simple process. It typically requires several steps:

1. Clinical Evaluations: You will need evaluations from a licensed social worker, licensed psychologist, and physician, who have evaluated your child within the past 180 days and confirmed that your child requires a guardian. A medical certificate is required if the person doesn’t have an intellectual disability.

2. Filing with the Court: Once evaluations are complete, the necessary paperwork must be filed with the court. This includes notifying your child and other family members, which can take about eight weeks.

3. Court Hearing: Attend a hearing where a judge will assess the evidence and decide whether to grant guardianship.

4.  Annual Report: Once appointed, the guardian must provide annual reports to the court.

 The Bottom Line

While the guardianship process may seem daunting, it is vital for ensuring your child's well-being as they transition into adulthood. Securing legal guardianship not only protects your ability to make important decisions but also allows you to advocate effectively for your child's future. By being proactive and understanding the steps involved, you can provide the necessary support to your child when they need it most. 

Disclaimer: The guardianship process can be complex and varies by jurisdiction. This article is intended for informational purposes only and is not a comprehensive guide. Please consult an attorney in your jurisdiction for specific advice.

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