
This is the third article in a three-part series.
It had been 18 years in the making.
From the day she was born, it was evident that your daughter had a disability. You’ve been her advocate since then: figuring out special education, public benefits, and medications. You’ve gone with her to every medical appointment. You know her limitations and the workarounds.
As a parent, you have put her needs first. There have been no problems until now.
What changed? Simple: she turned 18.
Legal Disability vs. Guardianship
What is a Legal Disability?
Before her 18th birthday, she was under a legal disability because she was a minor. You made decisions for her because you were her parent.
When she turned 18, the legal disability of a minority was removed and, with that, your power to make her decisions vanished. Her real disabilities did not change that, because the law presumes that every adult has the capacity to manage his or her affairs.
Although your daughter has the same needs, you no longer have the same rights or powers.
The answer? Guardianship.
How is Guardianship Different From a Legal Disability?
As a guardian of her person, you will once again have the power to access your daughter’s records and make decisions on her behalf. This is informally known as an “aging-out” guardianship, so-called because the proposed ward has aged out of the disabilities of a minority. It is common when a disabled child turns 18.
How to Obtain “Guardianship of the Person”
1. File An Application
The legal process begins when you file an application for “guardianship of the person” with a court that has jurisdiction over guardianship. In Dallas, Collin, Denton, and Tarrant counties, that would be a designated probate court.
2. Court Appoints Attorney Ad Litem
The court appoints an attorney ad litem (“AAL”) to represent your daughter, and a court investigator to determine if the guardianship is necessary.
3. Background Check
If you want to serve as her guardian, then you must submit to a background check and complete other required documents.
4. File a Certificate of Medical Examination
You file with the court a Certificate of Medical Examination that sets forth the type and extent of your daughter’s developmental disability. Examples of disabilities include intellectual disability, autism, static encephalopathy, cerebral palsy, and Down syndrome. If your daughter has an intellectual disability, then the person completing a Certificate of Medical Examination will give an assessment of her level of intellectual functioning and adaptive behavior.
5. Evaluate Alternatives to Guardianship
After determining the type and extent of disability, there is a threshold question that must be answered: is there a less restrictive alternative to guardianship available? If your daughter has enough capacity to understand and execute a power of attorney or to make medical decisions if you have the authority to explain the medical procedures to her, then she may not need a guardianship.
The court investigator and AAL will also consider if there are supports and services available in the community to assist your daughter.
6. Court Hearing
The court then holds a hearing where it considers testimony and other evidence. If it finds the guardianship is necessary and you are not disqualified from serving as your daughter’s guardian, then the court will enter an order granting you powers, removing your daughter’s rights, and setting a bond. You will take an oath and deposit the bond with the court’s clerk.
Every year thereafter you will file a report with the court about your daughter.
7. Optional: Set Up a Special Needs Trust
Aside from the guardianship, some parents will also set up a Special Needs Trust to hold funds that can be spent for your daughter. This type of trust is structured so that it will not disqualify your daughter from receiving government benefits.
Hammerle Finley is Here to Help With Adult Guardianship
If you have a special needs child, your planning should start now. Schedule a consultation with our team of expert attorneys to start your planning today.
And don’t forget to read the other two parts of this guardianship series:
- Part 1 discusses simple guardianship
- Part 2 examines a complex guardianship
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.