Monday, September 26, 2011

My disabled child is turning 18- do I need a guardianship?

Many times I have parents call me wanting to talk about a guardianship/conservatorship for their son/daughter who is disabled.   Many times they don't know if or why they might need to be doing something, other than that a friend or the school district has told them they need to do so.  Here are some basic thoughts:

Once an individual turns 18, in the mind of the law they are a competent adult, free to make any decisions either good or bad.   They retain this right until the day they die, or until a Court enters an order that says they are no longer competent.

In the case where a child with a disability is turning 18, many times they are completely unable to make their own decisions, and could actually be quite vulnerable to outside influences.   For instance, this child is now free to get a credit card, enter into any type of contract, and parents can often find themselves outside the waiting room- unable to be involved in medical decisions or having access to medical information.  Clearly, this can be problematic.

It is important to understand what the difference between a guardianship and conservatorship is.   A guardianship is when a person is nominated to be in charge of the incompetent indivdual's physical well-being.  This includes making medical decisions, ensuring the indivdiual has access to the basic necessities of food and shelter.  The conservator is in charge of any financial assets that the individual has in their name.  This would include bill-paying, managing bank or brokerage account assets, etc.

The guardian and conservator are often the same person, but they don't have to be the same.  Many times, if a child is turning 18, they may not have an assets in their own name, but I will often appoint a conservator anyways so that if the individual comes into property later in life, this step is already out of the way.

Next time, we will go into how someone actually becomes the guardian/conservator for an individual who can't make their own decisions.