Should I Get Guardianship for Child with Multiple Diagnoses When He Turns 18?

 In Special Needs Planning

Question:

I have an adopted son Nick who is 17 years old and attends a specialized high school. He is very immature and tests in the low normal for intelligence, short-term and long-term memory etc. Nick is diagnosed with ADHD, Oppositional Defiant Disorder as well as Auditory Processing Disorder, as well as having behavioral issues and maturity issues. Do I need to get guardianship for Nick before he turns 18?

Response:

The answer is probably “yes.” As you probably know, at age 18 everyone is presumed to have complete legal capacity. Parents are no longer “natural guardians” of their children. Guardianship would give you the power to make decisions for Nick such as whether he stays in school, where he lives, and what medical treatment he receives. Conservatorship would give you legal authority over Nick’s finances and legal matters. It would prevent him from entering into contracts and other legal commitments that are unwise or that he cannot fulfill. In either case, you would have to go to probate court to get appointed and Nick would have the right to counsel and to oppose your petition.

As I discuss here, it should not be a knee-jerk decision to seek guardianship or conservatorship over every child with special needs when she turns 18. Some can make many decisions on their own and are cooperative so the cost and burden of going to court is unnecessary. It can often be sufficient for them to name their parents under durable powers of attorney and health care proxies when they turn 18. However, your case sounds more difficult and I recommend consulting with a special needs planning attorney to determine how best to proceed.

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