When children turn 18, they become adults in the eyes of the law, and this grants them the authority to make primary decisions on their own behalf. If, however, your child has special needs that prevent them from making well-considered decisions or from adequately caring for themselves, a special needs guardianship may be required.
While your child remains your child regardless of their age, your legal right to make important decisions for them ends when they age into adulthood. If your child’s special needs require more focused care, you can potentially secure a special needs guardianship that allows you to continue making specific decisions about their care, medical needs, or education.
If you need to pursue a special needs guardianship, it’s important to know that an experienced Round Rock guardianship attorney is standing by to help.
Determining if Your Child Requires Special Needs Guardianship
Not everyone with a mental health disorder or a cognitive disability needs a guardian to make key decisions for them—in fact, most do not. If your child’s special needs, however, incapacitate them in some way, guardianship may be in order.
In Texas, there are two primary forms of guardianship:
Guardian of the Person
Guardian of the person involves making decisions that relate to your ward’s personal well-being, such as health care, living arrangements, and education. If you become your child’s guardian, of any kind, they become your ward in legal terms, which has no bearing on the fact that you are also their parent.
Guardian of the Estate
If you become your child’s guardian of the estate, it means making decisions regarding their financial affairs.
Some special needs children require help with their personal affairs, finances, both, or neither. Every situation is unique to the specific circumstances involved, and you’ll need to assess your child’s needs carefully in order to determine the level of assistance they require, if any.
In some cases, the need for guardianship is obvious. In others, the matter is more ambiguous. Your trusted guardianship lawyer will help you accurately assess your situation and make the best choices for you and your child.
The Court’s Position
Texas courts are bound by the best interests of the individual in guardianship matters, which means they aim to implement the least restrictive alternative to conservatorship possible. The goal is preserving autonomy and affording individuals the dignity of making decisions for themselves when appropriate.
Supported Decision-Making
Supported decision-making is a Texas alternative to guardianship that allows individuals with disabilities to make their own decisions, with guidance from a trusted supporter. The supporter is often a close family member, like a parent.
This arrangement must be voluntary, and your adult child must choose you to serve in this role. Supported decision-making is an informal process that does not require court involvement.
As the supporter, your job is to guide your child through the decision-making process, including gathering relevant information and weighing the available options. This approach supports greater independence, which is the state’s ideal.
Durable Power of Attorney
Another option is a durable power of attorney (POA), a legal document that appoints someone to make decisions on another person’s behalf. If you take on durable power of attorney for your child, you become the agent, and they become the principal.
A durable power of attorney allows you to make decisions specified in the document, whether related to health care, finances, or both. It is less restrictive than guardianship, and your authority is limited to what is outlined in the POA.
Texas courts prefer POAs when they adequately meet an individual's needs. Guardianship is only ordered when broader protections are necessary.
Types of Guardianship in Texas
There are several types of guardianship in Texas, each designed to meet a range of needs, including those of adult children with special needs.
Guardian of the Person
As mentioned, this guardianship means taking on the responsibility of making decisions regarding another person’s care, accommodations, and supervision. This includes decisions related to:
Medical care
Education
Vocational planning
Residence
Being a guardian doesn’t mean you must live with your child, supervise them daily, or fund their care personally, though many parents naturally do. The ultimate goal is helping your child achieve as much independence as possible.
Guardian of the Estate
This guardianship involves managing the finances of a person with special needs. If your child has assets beyond benefit checks, they may need this form of support.
As guardian of the estate, you must accept fiduciary responsibilities, which means always acting in your child’s financial best interest. You’ll also need to submit an annual financial report to the court.
Temporary Guardianship
Temporary guardianship is reserved for urgent situations requiring immediate decisions for someone temporarily incapacitated. It generally lasts 60 days but can be extended. You may also petition for permanent guardianship during this time.
Limited Guardianship
Limited guardianship allows you to make only specific decisions for your child, such as medical decisions, while they retain control over other aspects of their life. This promotes independence and is ideal when needs are targeted and not all-encompassing.
Successor Guardian
If you become your child’s guardian, it’s vital to appoint a successor guardian to take over if you're unable to continue or after your passing. You might also consider naming a co-guardian during your lifetime to ease the future transition.
Special Needs Guardianship: The Application Process
If you’ve determined your adult child requires guardianship, the legal journey ahead may seem daunting. Fortunately, your dedicated guardianship lawyer will guide you every step of the way.
The Physician’s Certificate of Medical Examination
The first step on your journey toward guardianship is having your child’s doctor complete the Physician’s Certificate of Medical Examination. This document identifies areas where your child needs supervision, such as dressing, feeding, transportation, financial management, employment, and more.
You’ll also need to demonstrate that you’ve considered less restrictive alternatives. Sometimes, it’s clear those options aren’t sufficient. Other times, the court requires thorough consideration.
The Guardianship Petition
Next, your attorney will help you file a guardianship petition with the probate court, along with the medical certification and other required documents. The court will assign a guardian ad litem to represent your child’s best interests.
The guardian ad litem evaluates your child’s needs, explores less restrictive options, ensures your child understands guardianship, and assesses their preferences.
The Guardian Ad Litem’s Determination
The guardian ad litem submits a report to the court, which includes their opinion on whether guardianship is necessary and whether you are the best candidate. You’ll need to show that no one else is better suited for the role.
The Letter of Guardianship
If approved, the court will issue a letter of guardianship, authorizing you to make decisions on your child’s behalf—whether with their doctor, school, bank, or insurer—based on the scope of the guardianship.
Turn to an Experienced Round Rock Guardianship Lawyer for the Help You Need
When it comes to guardianship of your adult child with special needs, there’s a lot to consider. Having the skilled legal guidance of a compassionate Round Rock guardianship attorney can make all the difference. Brett Pritchard at The Law Office of Brett H. Pritchard is here to help.
Call us at 254-781-4222 or contact us online to schedule a free consultation today.