As children near their 18th birthdays, parents often worry and wonder about how they will fare as independent adults. When a child with cognitive disabilities approaches the age of 18, parental concerns can be even more complex. Many parents of these individuals wonder whether they should seek legal guardianship over their children.
In most states, a parent is deemed to be their child’s legal guardian until the child turns 18. This legal authority includes making all medical and financial decisions for the child. The minute the child turns 18 years of age, however, legal parental authority ceases. The parent must then decide whether to seek decision-making authority for the child and, if so, how much.
A legal guardian is appointed by the probate or surrogate court for an incapacitated person (sometimes called a ‘ward’), and the guardian can be in charge of some or all of that person’s affairs. In some states, a ward’s financial affairs are controlled separately by a person known as a conservator. Therefore, in a case where an incapacitated person has financial assets that need to be protected and invested, it may be that both a guardian (of the person) and a conservator (of the funds) are required. In most cases, the guardian and conservator are the same person. Who may be a guardian? Any person 18 years of age or older may serve. The more complex question is, who should be the guardian.
Parents often will petition the court to be the guardians of their child, and usually the petition is granted. Sometimes the court will appoint one parent as guardian, while other times both parents will be appointed as co-guardians. If the parents do not live together or cannot agree, the proceedings may become contested, and the court may appoint an independent guardian. The court’s priority is always the best interests of the child; it will often choose an independent guardian or conservator if the parents cannot get along, which is sure to leave both parents disappointed. In some states, mediators are available to help parents resolve their conflicts rather than enduring a lengthy and expensive contested hearing process.
Not every child with disabilities needs to have a guardian, particularly those with good decision-making abilities. In many states, a limited guardianship is possible, as opposed to a full guardianship. A limited guardianship may be appropriate where a person may have the capability to make some but not all decisions. For instance, a person under guardianship may retain the right to vote and handle a limited sum of money, with all assets above that amount being managed by a conservator.
Parents should also take steps to name a successor guardian to serve after the parents have died or are no longer able to care for the child. Put the nomination in writing by nominating a guardian in a will. This person will still have to be confirmed by the court after the parent’s death, but it is wise to include the nomination in the will so the parent’s preference is known.
When selecting a successor guardian to care for a child after the parents’ death, there is only one option: Think carefully. There should be considerable discussion within the family. This important decision must be made not based on which sibling or relative is the oldest, or who is living closest, but on who is the most suitable person to serve the child’s needs, and who will best attend to the child’s care and protection.
Talk to potential guardians in detail about the child’s needs and the guardian’s willingness to serve. There is no significant benefit in taking on the role of guardian; rather, it is a responsibility, one that can be time-consuming and must be taken seriously.
The parent should discuss all issues, real and hypothetical, with the proposed guardian to determine whether he or she is willing to become essentially a substitute parent. The proposed guardian should be informed of all of the care needs of the particular child. The successor guardian will essentially step into the shoes of the deceased parent and is charged with making all required decisions, with possibly huge effects on the child’s life, including educational, social, personal, and medical decisions. Thus, great care should be taken in selecting a guardian or successor guardian.
There must also be discussion about where the child will live during his or her adult life. In some cases, the child may be living in a private residence or a family home, or they may be directed to live in the home of the proposed guardian. In some instances, it may be better for the child’s stability to have the guardian move into the child’s home if and when the parent is no longer alive or is unable to take care of the child.
Issues about where the child will live also present financial considerations. In many cases, the child will have a special-needs trust established for his benefit, and a trustee will be appointed to oversee finances, including investment, income, asset distribution, tax filing, etc.
One should always consider the relationship between the guardian and the trustee to be sure that conflicts between the two do not exist. The guardian will be requesting funds from the trustee to maintain the child’s household and pay for the child’s other needs and desires, such as vacations, clothing, education, etc., and a personality conflict between the guardian and the trustee may render the trustee reluctant to distribute funds. This is more likely to be a potential problem when two different family members are named as guardian and trustee, but is typically less of an issue when the trustee is a professional, like a banker, attorney, financial advisor.
There is no substitute for a parent, no one will do the job as seriously and diligently. Nevertheless, as parents consider who may step in when they are gone, the appointment of a guardian for a disabled adult child is one of the most important estate-planning decisions. These plans should be discussed with your lawyer and reviewed often to be sure that, if a change is necessary, it is attended to promptly. v
Attorney Hyman G. Darling is chair of Bacon Wilson, P.C.’s Estate Planning and Elder Law departments. His areas of expertise include all areas of estate planning, probate, and elder law. He is a frequent lecturer on various estate-planning and elder-law topics at local and national levels; (413) 781-0560; email@example.com