When parents have a disabled child who is reaching the age of majority, they may have many questions about how the child will care for themselves as an adult. Parents may assume their adult child will need a legal guardian, but sometimes less restrictive alternatives are available.
What is a guardian’s authority?
Once a disabled child reaches age 18, they are legally vested with the right to make their own life decisions. However, if a disabled adult child is deemed incapacitated by the court, their parent or another trusted person can be assigned as their guardian.
A disabled adult is only legally incapacitated if, following a guardianship hearing, the court is satisfied that the person is unable to receive and process information and communicate effectively, rendering them unable to manage their financial affairs or take care of their physical health and safety. Furthermore, a physician and or psychiatric verification of incapacity is required at the time of the hearing for a disabled adult to be declared legally incapacitated.
A guardian steps into the shoes as decision-maker for the incapacitated adult. These decisions can be financial, medical and/or personal in nature. Once a guardian is appointed, the incapacitated adult is devested of their right to make these decisions for themselves, although they can express their preferences in the decision-making process. It is important to remember that “designing persons” often attempt to take advantage of disabled individuals and one way to protect against “designing persons” is for a guardian to be appointed.
Alternatives to guardianship
Many see guardianship as a last resort, as it is often in a person’s best interests to retain as much control over their life as possible, even if they need some help. So, parents might want to consider some alternatives to guardianship for their disabled adult child.
Make sure to talk to an attorney about a disabled adult being declared legally “partially incapacitated” and what this means for the disabled adult as well as the guardian.
For example, some disabled adults receive government benefits such as Social Security disability income (SSDI) or Supplemental Security Income (SSI). These specific benefits can be managed by a representative payee, allowing the disabled adult to manage their other financial affairs.
In addition, a parent or other trusted person can be appointed a disabled adult’s health care representative. A health care representative can make medical decisions, but not life or financial decisions on behalf of a disabled adult. This way, the disabled adult retains the ability to make personal care decisions while still receiving appropriate medical care.
Also, sometimes a disabled adult simply needs the informal advice of trusted relatives, their doctor or their attorney. Total substitute decision-making by a guardian is not always necessary.
Still, sometimes less restrictive measures will not be sufficient to ensure the disabled adult will be kept healthy and their personal and financial affairs will be handled competently, even with help. In such cases parents or another trusted adult might petition to become guardian of the disabled adult they love.