The law deems us to be of full legal capacity when we reach age 18, unless we’re incapacitated for some reason (other than insufficient age). And everyone is presumed to be competent unless a court decides otherwise. So what should parents do when they have a special needs child who is about to turn 18? As with most things, there is no hard and fast rule or simple answer.
Why You Would Want a Guardianship or Conservatorship
There are a number of possible reasons for pursuing guardianship or conservatorship – access to medical information and doctors, ensuring educational obligations are met by school districts (which can extend beyond age 18), access to funds or income sources, and protection against improper contracts or purchases, to name a few. The main reasons against pursuing guardianship or conservatorship are the desire to foster a sense of independence and self-determination in the now legally-adult child, the reluctance to publicly take away the child’s rights, and of course, the costs and hassle of going through both the initial court process and annual reviews.
We often counsel against a knee-jerk reaction of pursuing guardianship or conservatorship for a child with special needs turning 18. There are so many that fall under the broad label of "special needs" and everyone is different. The question must be considered in the context of the child’s specific abilities and needs for assistance. If parents do not see specific risks for their child, then there are less restrictive alternatives to pursue. For example, can the child simply execute a HIPAA medical release and health care proxy so the parent can stay in the loop on medical issues adn a durable power of attorney for financial and legal matters? Will the school district try to deal solely with the child and exclude the parents or will it continue to include them in all meetings and plans? Can the parent become a representative payee for Social Security payments? Is the child at risk of being taken advantage of, or likely to get himself or herself into financial trouble?
On the other hand, if these alternatives do not make sense for a particular child, then certainly the guardianship or conservatorship process is essential and well worth it. And they do not have to be an all-or-nothing proposition. Under Massachusetts law, there’s a presumption that a guardianship or conservatorship is limited to only the specific needs of the individual. While this is more law than practice, the guardianship or conservatorship can be crafted so the child does not lose all of his or her rights, and could potentially maintain a greater sense of independence. Further, guardianship and conservatorship need not be permanent. If the child doesn’t need the guardianship or conservatorship in the future, it can be terminated.
Ultimately, these are not easy questions to answer. Each situation must be evaluated and decided on a case-by-case basis.