Guardianship and your Child with Special Needs

When an individual in New Jersey or Pennsylvania turns 18, he has reached the age of majority and his parents can no longer make decisions legally on his behalf. This applies to all young adults, even those who have special needs.

Before your child with special needs turns 18, consider whether he is able to make important decisions, including consent to medical treatment, education, where to live, how to spend his day and making financial decisions. If, as a result of a developmental or intellectual disability, your adult child is limited in his ability to make and/or express decisions, consideration of Guardianship is warranted.

Q: What is Guardianship?

A:Guardianship is the court appointment of a person or agency (the Guardian) to make personal and financial decisions for an individual who is not capable of making these decisions independently. A properly crafted guardianship will facilitate the independence of the person with a disability because it will be limited to address only those areas where the individual is not able to make his own decisions.

Q: Should I begin thinking about Guardianship when my child turns 18?

A: No – you should begin thinking about Guardianship at least six months before your child’s 18thbirthday.  Guardianship is a legal process whereby the court first determines whether an individual is incapacitated, whether the individual requires a guardian, and then appoints the guardian(s) to make decisions for that individual. This process takes time and requires preparation to gather necessary information, arrange for doctors’ appointment and draft legal documents.

Q: How do I know if Guardianship is appropriate for my child?

A: When meeting with clients, we ask a variety of questions aimed at determining whether a general guardianship, limited guardianship, or no guardianship at all, is right for each situation. Full Guardianship grants full decision making authority over all aspects of the individual’s life, including medical decisions, entering into marriage, choosing a residence, managing finances, vocational choices, and voting rights, to name a few. A limited Guardianship allows the incapacitated person to retain decision making authority over as many areas as he is capable of managing. Courts prefer to employ limited Guardianship whenever possible.

When thinking about whether Guardianship is appropriate for your child, here are some initial considerations:

  • Can she prepare her own meals?
  • Can she shower and dress herself?
  • Is she able to communicate with doctors regarding her medical issues?
  • Is she able to make purchases and get proper change back?
  • Can she be left home alone overnight or longer?

While certainly not an exhaustive list of questions, these considerations offer a starting point to determine the extent to which your child may need a Guardian.

We consider Guardianship arrangements a thoughtful act of protection for the newly minted adult who lacks the capacity to understand all the legal consequences of his actions, needs and decisions.

This article is intended as general information and not as legal advice. If you have a loved one with special needs, contact an attorney at Maselli Warren, P.C. to schedule a consultation where we will meet with you, answer your questions and discuss all available options to help you to determine what works best for you and your child.