Is Guardianship the Best Choice When Your Special Needs Child Turns 18?
Question: My son is 17.5 years old and we are not sure if we should move forward with Guardianship. Do you have any advice on how to make that decision?
For some families the question of attaining Guardianship for their child with autism at age 18 is an easy one, simply based on their child’s support needs. However, for some families, this decision is a bit more challenging.
Your son may be doing well in school, he may be on a path to driving a car, he has a part-time job, and he may even be considering some type of schooling after high school is over. So how do you know what’s the best?
You should ask yourself two questions to begin this decision-making process:
- What is the intellectual or developmental or social age of my child?
- If your answer is less than 18, for instance, age 14, then ask this next question; Would I let my 14-year old make decisions that will be legally binding?
If you would not let your “14-year-old” enter into contracts, make his/her own medical decisions, attend his/her own Individualized Education Program (IEP) without you or open up his/her own financial accounts, then you may want to consider becoming your child’s Guardian. As his/her Guardian, you will have the final say such as in the above situations.
Please know that if your child continues to develop his/her life-skills— and in the future his/her developmental age reaches the age of 18 or older—then you can always motion the court to be removed as his/her Guardian.
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There are also alternatives to Guardianship. Such examples including Durable Power of Attorney and Health Care Power of Attorney. Your child must have the ability to understand these documents when he/she signs them in order for them to be valid.
The Durable Power of Attorney allows you to help him/her with his/her finances, and sign contracts; however, your child can still sign his/her own contracts or open accounts without your signature authorization.
Conversely, The Health Care Power of Attorney will allow you to make medical decisions for your child, but only if your he/she is unable to do so (possibly unconscious) in order for you to make decisions about his/her health care. If your child is awake and communicative, then the Health Care Power of Attorney will not allow you to overrule your child’s decision about his/her health care choices even if you know the course of action he/she is choosing is harmful. Being your child’s Guardian will allow you to be the final say on these decisions.
You may also hear of a term called Supported Decision Making, which is being discussed as an alternative to Guardianship. There a handful of states that have legalized Supported Decision Making agreements, however, unlike Powers of Attorney and Guardianship, Supported Decision Making Agreements do not offer the same legal protections.
Supported Decision Making is extremely important regardless of if you choose Guardianship or Powers of Attorney. You will still want to include and guide your child in all decisions that impact his/her future regardless of if you decide to pursue Guardianship.
This article was featured in Issue 102 – Supporting ASD Needs Everyday