A Guardianship is a court proceeding to determine whether a person is capable of making legal and medical decisions. Once the court determines that a person is not able to make their own decisions, the person is considered incapacitated and a Guardian is appointed. There are two types of Guardianships; Guardian of the Person and Guardian of the Property. The Guardian of the Person oversees the individual care of the person such as where they live, where they work, and to a great extent the medical care they receive. The Guardian of the Property oversees the financial assets of the person. In both instances, the court will require regular filings to make sure the well-being of incapacitated person is protected.
Parents of developmentally disabled children have the concern that when their child reaches the age of 18 they must obtain Guardianship over their now adult child. To determine whether a Guardianship is appropriate there are several factors to consider. The first consideration is whether someone is challenging your ability to make decisions for your son or daughter, whether it is medical or financial. If no one is interfering, then a guardianship may not be the best choice. Another factor is to determine how is your child behaving? Are they acting responsibly? If not, then you will want to consider a guardianship in order to protect your child from themselves. An example of this would be the misuse of credit cards. If a person is incapacitated, then they can not enter into a credit card agreement and any credit card charges are invalid.
If you choose not to pursue Guardianship there are other mechanisms in place to assist with the care of your adult disabled child without the need to go to court. One is a Power of Attorney. If your child is able to communicate and tell an attorney who they would like to make medical financial decisions for them, then your adult child can execute of financial power of attorney and a medical power of attorney.
If your child is unable to sign a medical power of attorney, the state of Maryland has a law called the Health Care Surrogacy Act, which allows family members to act on their behalf.
Another alternative to Guardianship is a Representative Payee with Social Security. If your adult child is unable to manage their own finances then you can ask to be named the Representative Payee. Once that is done then you can oversee the Social Security Income for your child.
Determining whether you should file for Guardianship of your adult child requires a balancing of many issues, some practical, and others legal. For a thorough discussion of your options and legal rights, it is best to meet with a qualified estate planning attorney.
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