Guardianship for Families with Special Needs "Kids"

Guardianship for Families with Special Needs "Kids"

Last week, after a guardianship court hearing, the judge of a North Texas court told me that (in his court), he would guess that 80%+ of the guardianship applications heard by his court are filed by families of special needs young people who are soon turning 18 years old. Instantly, it occurred to me that I should write a blog that simply and briefly explains the concept of guardianship in this regard for families who need help. 

First, understand the legal landscape. As a parent in Texas (and anywhere), you have a plethora of legal obligations related to your kids. The law requires that you provide them with food, clothing, medical care, educational options, etc. Along with those obligations, you’re vested with certain legal rights. In the simplest terms, for each of the obligations mentioned above,  you’re also given the corresponding rights to make decisions about medical care, educational decisions, and therapies. But, when the child turns 18, that all changes. 

Some people believe that just because a doctor has diagnosed a minor as cognitively or developmentally disabled in some way, the diagnosis magically changes (or extends) the legal rights related to the child. That’s not true. Simply put, when a young person reaches the age of 18, no matter their medical condition, all of those legal rights are automatically transferred to them and now the young person, not their parent, is allowed to make legal decisions. Only a court of competent jurisdiction can change this. 

Let’s put this is context – at age 18:

  • The young person (now a legal adult) can make decisions about their money. Such decisions can include the decision of how money is spent but also the decision to get into debt (like applying for a credit card). After 18, no parental authorization is needed.
  • Further, upon reaching age 18, the young person can make decisions about their health care (such as types of therapies they accept). If the young person wants to decline treatment, the hospital is obligated to follow their directions. After 18, no parental authorization is needed (and, in fact, if a parent tries to make a decision for a patient who is above 18, in some cases the health care provider won’t accept such decision without proof the parent is legally allowed to make it).
  • Also, upon reaching 18, the young adult is allowed to make decisions related to their residence. While you (as their parent) are no longer legally obligated to provide shelter for them, if you want them to stay, and they want to leave at any point, they simply can and a police officer won’t stop them.
  • Finally, the young adult now also has the right to vote in a public election, apply for a license to operate a motor vehicle without your consent, purchase and keep firearms and anything else any other legal adult can lawfully do. No parental authorization or supervision is needed or required.

     Fortunately, Texas law can help. Guardianship is a legal process that allows one adult to ask a court to entrust the legal rights of someone else (including an “incapacitated adult”) to them. For example, a parent who wants to continue making legal decisions and helping their special needs child (who is reaching the age of legal adulthood) can ask the court to create a guardianship that allows the parent the ability to continue making personal or financial decision (or both) for their adult child. Though the guardianship process can be relatively simple and straightforward, Texas law has strict legal requirements that must be satisfied before a court will grant the application. This is not a “rubber-stamp” legal process but one that requires medical evidence, consideration of the needs of the proposed ward, and an inquiry as to whether the applicant is the most appropriate person to serve as guardian. 

     While any licensed lawyer may represent a family applying for guardianship, I strongly encourage you only to utilize lawyers who are experienced and knowledgeable in this area of law. Although it’s not too common (thankfully), I’ve seen some lawyers who are grossly inexperienced in this field of the law take such cases and end up over-charging their clients or taking an extended period to complete the process. Just remember, it’s completely acceptable for you to ask any lawyer you are considering working with how frequently they (or their firm) deal with guardianship matters before hiring them. You should. Our firm is experienced working with families of special needs loved ones in many areas including creating guardianships, the creation of Special Needs Trusts, Medicaid Applications, and other related matters. Should you find yourself in need of more information about guardianship, please call us for a completely free consultation. We can be reached by calling (469) 607-4503 or emailing chris@parvinlaw.com. 

 

ATTORNEY CHRIS PARVIN is Board Certified in Estate Planning & Probate Law by the Texas Board of Legal Specialization. Mr. Parvin is the Managing Partner of the Dallas, Texas law firm of Parvin Law Group, P.C. and serves as an Adjunct Professor of Law at Texas A&M University School of Law. Mr. Parvin can be reached by email at chris@parvinlaw.com

Parvin Law Group, P.C. is a Concierge Law Firm in Dallas, Texas with attorneys practicing law in the fields of Estate Planning, Probate, Business Law and Family Law.