Guardianship - Safeguarding Children with Special Needs

Posted on August 17, 2009 by Luis J. Amaro, Jr.

Once your child turns 18 years of age, she is considered an adult and presumed to be competent. Physicians and other health care providers are bound to protect your child’s privacy under the law and are restricted from discussing your adult child’s medical care with anyone without her consent. A health care provider’s ability to disclose health care information becomes particularly complicated in the case of a patient with special needs that impairs their mental capacity. This complication arises because your child’s lack of mental capacity may prevent her from consenting effectively to the sharing of her health care information. Consequently, a health care provider may refuse to discuss your child’s medical treatment and other issues with you.

Another concern relates to protecting your child’s finances from individuals who seek to take advantage of her because of her special needs. As an adult, your child can enter into contracts and maintain bank and other accounts which can be exploited by persons with bad intentions. This is of particular concern where your child may be the recipient of a large monetary gift or the beneficiary of an estate or life insurance policy. Therefore, parents of a child with special needs who is going to turn 18 should consider applying to the courts of the county in which they live to be appointed as their child’s legal guardians. While guardianship applications can be made at any time and are routinely made for older adults under varying circumstances, making an application before your child becomes an adult insures that your ability to safeguard your child and to make medical and other necessary decisions for her will be seamless.

Guardianship appointments are flexible and can be comprehensive or, depending on your child’s functionality, be tailored to allow your child the greatest freedom possible to make medical, financial and other decisions. The process requires the filing of specified documents with the court that include one or more physician or psychologist certifications and, if applicable, a certification from the appropriate representative of the Division of Developmental Disabilities  ("DDD") for your region. The application process is streamlined and can be concluded within a few months. Parents seeking to protect their children with special needs should consider making an application for guardianship before the need to make significant medical, financial or other important life decisions arise. These applications are regularly incorporated into a family’s estate plan which often involves setting up special needs trusts and taking other measures in conjunction with guardianship applications to secure and protect the futures of your children with special needs.
 

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Guardianship: It's Not Simply for the Elderly

Posted on March 3, 2009 by Lori I. Wolf

As your child with special needs approaches the age of 18, it is very important to consider whether applying for guardianship is appropriate. If the child is not able to handle his or her own medical or financial decisions as a result of his or her special needs issues, you as a parent should apply to become legal guardian of the child. Once a child obtains the age of 18, a parent has no legal right to make decisions on behalf of his or her child.

In order to retain control of decisions related to the child, parents must be named guardian of the person and property of the child. In New Jersey, limited guardianships are also an option. This permits guardians to be named to assist a child where needed without taking full control away from the child. For example, a limited guardianship could permit a child to obtain a drivers license, to retain control over a bank account with some set dollar amount or to make or participate in medical decisions.

Alternatively, a full guardianship gives complete control and total decision-making power over the child and his or her finances to a parent or other named individual. In New Jersey, judges will not build in successor guardians when naming guardians, so often families will name multiple individuals as guardians from the inception (such as both parents, or both parents and an adult sibling together).

A guardianship action begins with the filing of a complaint with the Court requesting that a guardian be named. Two affidavits must be submitted with the Complaint. These must either come from two doctors or psychologists, or if the child with special needs is registered with the Division of Developmental Disabilities (“DDD”), an affidavit from DDD can replace one of the two above referenced affidavits. The affidavits must be signed, and the child must have been seen by the doctor or doctors within thirty days of the filing.

A court appointed attorney will be named to represent the child with special needs and advocate on his or her behalf. That attorney will review the medical records of the child with special needs, will meet with the child with special needs and the proposed guardian or guardians, and will prepare a report of his or her opinion regarding the motion for guardianship. Some judges require the motion for a guardian to be named to be heard in Court, with the proposed guardian present, and others will respond on the papers with respect to the motion.

It is important for you to anticipate that the guardianship process from start to finish will take approximately three to six months, so this should be started before the child turns age 18. A guardian will not be named until the child reaches 18, however, so the action cannot be commenced too early either.

Unfortunately, many parents do not think to get this process moving until there are extenuating circumstances (such as the need for urgent medical care or hospitalization). While the courts will appoint a temporary guardian on an expedited basis where an emergency exists, even these can take several weeks to complete.
 

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