Guardianship: Planning for the Care of Adults with Birth Injuries

Last Will and Testament

The biggest fear of many parents who have children with disabilities is how their children will survive when the parents are gone.  Because of improved medical care, even children with significant and permanent medical problems can outlive their parents or caregivers.  A related concern is how parents can continue to care for their children once they reach adulthood.

Guardianship Over Adults

Every state will have a different process to handle the appointment of a guardian.  This is likely to require a petition for guardianship filed with a court, and potentially examination by a medical professional.  At a hearing, the judge will review the evidence and determine whether guardianship is warranted.

There are three general types of guardianship:

  • Guardianship of the Person:  This person can have custody of the child, but no control over money or property (unless this guardian is also a guardian of the estate).  Decisions made by a guardian of the person include educational decisions.
  • Guardianship of the Estate: This type of guardian is responsible for your child’s property, including money, assets and real property.  There are strict accounting requirements to help ensure that the property is protected.
  • Limited Guardian:  A limited guardian would have powers specifically restricted to certain areas.  This is most common if a person is mostly self-sufficient, but may require some help in a few areas.

It is extremely important that parents plan for guardianship before a child turns 18.  Without formal guardianship, a parent may not have any rights as far as the child’s medical care, right to marry, right to enter into contracts, or financial decisions.  If the child is hospitalized, parents without a guardianship may not even be permitted to visit the child.

Planning Ahead:  Caring For An Adult Child Who Outlives Parents

As all parents should do, it is important to plan for children if the unthinkable happens and the parents die.  The situation is a little more complicated when making arrangements for adult children with special needs, however.  The strategies for care may include special needs trusts, life insurance on the parents, group homes and/or designated guardians to provide care.  Parents should carefully choose guardians who are physically, mentally and even financially capable of providing the necessary care, and should work with their wills and estates lawyer for guidance.

As the number of developmentally-disabled adults grows, it seems that state and federal budgets to care for these adults are perpetually shrinking.  Financial planning at the earliest stages is vital.

Contact Us

Planning ahead for a child with disabilities can be difficult, but having a plan in place will alleviate worry and concern.  If your child has a developmental disability caused by a birth injury, contact our medical malpractice lawyers to find out how we can help.  You can reach us at (888)-452-4912 or online.

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