Guardianships for disabled adult children: The planning should start now

When a disabled child turns 18, the legal disability of minority is removed and, with that, the parents’ power to make his or her decisions vanishes.

By Virginia Hammerle

(Part three of a three-part series on Texas guardianships.)

It had been 18 years in the making.

From the day she was born, it was evident that your daughter had a disability. You’ve been her advocate since then, figuring out special education, public benefits and medications. You’ve gone with her on every medical appointment. You know her limitations and the workarounds.

As a parent, you have put her needs first. There have been no problems until now.

What changed? Simple: She turned 18.

Before her 18th birthday, she was under a legal disability because she was a minor. You made decisions for her because you were her parent.

When she turned 18, the legal disability of minority was removed and, with that, your power to make her decisions vanished. Her real disabilities did not change that, because the law presumes that every adult has the capacity to manage his or her affairs.

Although your daughter has the same needs, you no longer have the same rights or powers.

The answer? Guardianship.

As a guardian of her person, you will once again have the power to access your daughter’s records and make decisions on her behalf. This is informally known as an “aging-out” guardianship, so called because the proposed ward has aged out of the disabilities of minority. It is common when a disabled child turns 18.

The legal process begins when you file an application for “guardianship of the person” with a court that has jurisdiction over guardianships. In Dallas, Collin, Denton and Tarrant counties, that would be a designated probate court.

The court appoints an attorney ad litem (“AAL”) to represent your daughter, and a court investigator to determine if the guardianship is necessary.

If you want to serve as her guardian, then you must submit to a background check and complete other required documents.

You file with the court a Certificate of Medical Examination that sets forth the type and extent of your daughter’s developmental disability. Examples of disabilities include intellectual disability, autism, static encephalopathy, cerebral palsy and Down syndrome. If your daughter has an intellectual disability, then the person completing a Certificate of Medical Examination will give an assessment of her level of intellectual functioning and adaptive behavior.

After determining the type and extent of disability, there is a threshold question that must be answered: Is there a less restrictive alternative to guardianship available? If your daughter has enough capacity to understand and execute a power of attorney or to make medical decisions if you have the authority to explain the medical procedures to her, then she may not need a guardianship.

The court investigator and AAL will also consider if there are supports and services available in the community to assist your daughter.

The court then holds a hearing where it considers testimony and other evidence. If it finds the guardianship is necessary and you are not disqualified from serving as your daughter’s guardian, then the court will enter an order granting you powers, removing your daughter’s rights and setting a bond. You will take an oath and deposit the bond with the court’s clerk.

Every year thereafter you will file a report with the court about your daughter.

Aside from the guardianship, some parents will also set up a Special Needs Trust to hold funds that can be spent for your daughter. This type of trust is structured so that it will not disqualify your daughter from receiving government benefits.

If you have a special needs child, your planning should start now.

Attorney Virginia Hammerle will present a seminar on “Guardianships” from 2 to 3 p.m. on May 23 (F) at the Skillman Southwestern Branch Library, 5707 Skillman St., Dallas. Registration is required. To register, call 214-670-6078.

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Guardianships for disabled adult children: The planning should start now