If your child was very young when diagnosed with a profound disability, you may know no other way than that of providing every necessity for your child. On the other hand, if an accident or illness rendered your child disabled, you may still be learning how to provide what he or she needs.
One question you may have is what to do when your child turns 18. While technically an adult, if your child cannot care for him or herself, you may intend to continue providing that care. However, by law, you may have to seek guardianship over a legally adult child, even if that child is severely handicapped, in order to make vital decisions about medical care, finances and daily life.
Is this really necessary?
Seeking guardianship over an adult child is not something to do lightly. Guardianship strips your child of all authority to make decisions for him or herself. In fact, in some cases, it is not appropriate for you to have guardianship when other methods of protection are available, for example:
A special needs trust
Community or family assistance
Durable power of attorney
If your child needs assistance in more than a few areas, or if your child is too easily influenced for his or her own good, guardianship may be necessary. However, family advocates recommend finding the least restrictive option for the good of your child.
Becoming a legal guardian
To obtain guardianship for your child, you will have to petition the court. Such a petition will include affidavits from doctors, descriptions of the disabilities and explanations of why your child is incapable of making critical decisions for him or herself. The court will expect you to prove that guardianship is the best alternative for your child, and witnesses will testify, both to the child’s lack of capacity and your fitness as a guardian.
If a New York court finds in favor of making you guardian for your adult disabled child, the judge will likely place limitations on your authority based on the evidence presented. In general, you will have power to control only those elements of your child’s life that your child cannot control. As guardian, you will report regularly to the court to prove you are fulfilling your duties to the child or to request any modifications to the guardianship.
As this is a very general overview of the elements of guardianship, you likely have many questions about the process. Laws governing guardianships vary from state to state, so seeking legal advice may be in your best interests.