When children with special needs reach age 18, their parents are no longer their legal guardians and conservators. They may find that all of the sudden doctors and other health care professionals will no longer talk with them because doing so would violate the child’s right to medical privacy or that school personnel will go around the parents to talk directly with the child about his educational plan, perhaps seeking to modify the plan by removing necessary supports. Parents then need to make a decision about whether to seek court appointment as guardian and conservator. We recommend that they not automatically follow the often knee-jerk advice to seek such appointments, but stop to consider the pros and cons.

Guardianship vs. Conservatorship

In order to get these appointments, parents have to establish their child’s legal incapacity. In most states, guardianship and conservatorship have been separated, with guardianship being the court appointment of someone to make personal and health care decisions, such as what medical treatment to take and where the individual will live. Conservatorship involves the appointment of a fiduciary to make legal and financial decisions, such as how funds will be invested or spent and whether to sign contracts. (If the child has no money, in most instances a conservatorship is not necessary.) Each state has its own reporting requirements and rules on what decisions a conservator or guardian may make on her own and for which she must seek court approval. For instance, the state may or may not require approval prior to placing an individual under guardianship in a long-term care facility or prior to transferring the assets of a person under conservatorship into trust.

Financial and Administrative Burden

Guardianships and conservatorships not only give parents the right to step in and make decisions for their child but take those legal rights away from the child. In most states, the courts will entertain a petition for a limited appointment that only takes away certain rights and permits the child to retain others, but this ability to tailor the appointment is in fact rarely used. In addition, these appointments can be costly and impose cumbersome reporting and pre-approval requirements for certain financial and residential decisions.

Alternatives

In some cases, the need for guardianship and conservatorship is obvious and the appointments are necessary to protect the child. In many others, it’s not so clear and it may be more appropriate to ask the child to execute a durable power of attorney and health care proxy or to seek just guardianship or just conservatorship, but not the other role. This way, the child retains certain legal rights and a sense of autonomy while giving the parent the ability to step in and make crucial decisions as necessary. It doesn’t have to be all one way or the other. Sometimes parents and their children with special needs can share these roles and responsibilities.

Case Study

The Jorgensons’s 17-year-old son, Jack, has moderate autism. They have always done everything they can to enhance Jack’s functioning, but they fear that he will never be able to live independently and that he could become a target of people who want to take advantage of him. On the other hand, at this time, Jack has no assets of his own, will continue to live with his parents for the immediate future and gets along well with his parents. The Jorgensons have been advised by Jack’s social worker that they should get guardianship over him as soon as he turns 18.

The Jorgensons meet with a special needs attorney intending to hire her to obtain guardianship over Jack. She explains the process as well as the difference between guardianship and conservatorship. She also explains the annual reporting required by the probate court. After some discussion, the Jorgensons and the attorney agree that she will meet with Jack. If she feels comfortable that he has sufficient understanding, she will prepare a durable power of attorney and health care proxy appointing his parents to represent him. If she does not feel he has sufficient capacity to execute these documents, they will seek guardianship now. They will not seek conservatorship because Jack has no assets at risk and is unlikely ever to acquire any. If he does in the future, they can seek conservatorship then if necessary.

 

Related Articles:

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

Can a Guardian Live Out-of-State?

What is a Durable Power of Attorney?