My Adult Disabled Child Has Turned 18 – Does Anything Change?

Last September I wrote a post about a scenario increasing in frequency involving an elderly parent who is deteriorating mentally but has refused to sign a power of attorney or health care directive.  The family’s last resort is the guardianship process.  A few weeks ago I wrote about how parents who have adult children with special needs ought to set up a special needs trust to help meet the needs of those children.  But what so many parents don’t realize is that when their child reaches the age of majority, age 18 in most states, they no longer legally have the right to make decisions for that child.

 “But Jimmy can’t possibly make financial and health care decisions for himself”, the parent tells me.  “You may know that,” I say, “but the law presumes that Jimmy is competent unless and until a court deems him to be incapacitated.”  I then explain the guardianship process by which a judge must decide that Jimmy is in fact unable to make his own decisions and that the person requesting to be appointed his guardian is a suitable person to protect him and act in his best interests.

 And as I wrote last year, because we have a strong history of individual rights in this country, taking away the freedom to make one’s own decisions is not something to be considered lightly.  Jimmy must be examined by two doctors who must agree that he is incompetent. (The exact process may vary from state to state.)  Then the court appoints an attorney to represent Jimmy.  The attorney must meet with Jimmy and report back to the court.  If Jimmy has the capacity to understand what guardianship means he may object to the process.  His court appointed attorney must send the judge a report as to his/her opinion about whether Jimmy needs a guardian and whether the person applying for that appointment is appropriate.

 So what happens if Jimmy objects or the doctors or his attorney don’t agree with Mom and Dad’s assessment?  Stay tuned.  We’ll discuss that next week.