Things Every Parent With A Special Needs Child/Adult Should Know
Getting court ordered guardianship over your adult disabled child is something you have known is coming for years. There is a lot of misinformation out there on how long it takes to get a court ordered guardianship in place. I have several clients get in touch with me when their children turn 16 asking if this is the time to get the guardianship ball rolling. The earliest you can file for a guardianship is when your disabled child is 17.5 years old.
Your disabled child does not need a court ordered guardian until he/she turns 18. It is the fact that your child is becoming an adult, regardless of the degree of his/her disability, which triggers the need for the court ordered guardianship.
1. When can you file for court ordered guardianship?
Let’s take a look at a typical timeline. Let’s say your son, who we will call Max, will turn 18 on July 1. This means that he is 17.5 on January 1. You are allowed to file guardianship papers once your child turns 17.5. If you want to file the guardianship papers as soon as you are able, then you should get in touch with a guardianship attorney on December 1. That is plenty of time to get the paperwork ready to be filed on January 1.
If you file the court papers on January 1, you will most likely get a court hearing sometime in late March. There is a mandatory 45-day waiting period between when papers are filed with the court and when a guardianship hearing takes place. However, the courts are pretty busy and as a practical matter, you probably will have more like a 60-75 day delay. Let’s say the hearing is scheduled on March 15.
When you go to the hearing on March 15, the judge will grant the guardianship, but say that it does not go into effect until July 1 when Max actually turns 18. This is ok because until Max actually turns 18, you don’t need the court ordered guardianship.
2. Must a court ordered guardianship be in place as of Max's 18th birthday?
Do you have to get guardianship of Max just before or around his 18th birthday? It is really up to you. I have had clients with children in their 20’s and 30’s before court ordered guardianship is obtained. Most of the time, doctors, schools, employers and others often will deal with you as the parent of a disabled adult. In their minds, someone needs to make a decision for Max and they are happy you stepped up to the plate. However, the risk you take in waiting is that someone will not deal with you, regardless of the degree of Max’s disability and his obvious inability to speak, make decisions, etc. At that point in time, needing to get an emergency court ordered guardianship so you can make decisions is no fun. For this reason, the vast majority of people get the guardianship around their child’s 18th birthday.
3. Why do you need to get court ordered guardianship anyway?
You are welcome to scream and shout that you are Max’s parents and are definitely entitled to make decisions for him, regardless of a court ordered guardianship. You may think, “who is a judge to question my ability to parent and love my child?” You may well be right, except that once Max is an adult, he has all of the rights of an adult, just like you, regardless of whether he is able to exercise those rights. Adults are allowed to make their own decisions. In order to “take those rights” away from Max requires court action and oversight. The good news is that this type of system helps protect Max from bad folks looking to take advantage of him. The bad news is that you, as a parent, kind of get lumped in with the bad guys.
You only need to go to one court hearing for the court ordered guardianship. Even if the guardianship hearing is before Max’s 18th birthday and before the guardianship is needed, only one hearing is necessary. At the hearing, the judge orders that the guardianship doesn’t become official until July 1 when Max turns 18, or if the hearing is after July 1, the guardianship becomes official at the hearing.