Guardianship: The Magic Age of 18

In Texas, as in most of the United States, 18 is a magic age.  It is the age of majority, the age of consent, and the age where we are formally considered an adult - well mostly an adult.  Some things are withheld until age 21.  There are many things to look forward to at age 18.  However, for some, that magic age can also create some legal challenges.  For example, a child turning 18 now has the legal capacity to make decisions about their medical care, living arrangements, and educational choices, as well as having the power to make choices regarding spending, and even having the right to tell Mom and Dad things like “no!” and “leave the room.”  Furthermore, school administrators and educators often tell Mom and Dad they are no longer able to be part of their child’s educational decision-making process.  That can be particularly challenging and troublesome to parents of children with intellectual and developmental disabilities.  So, is all lost or is there something that can be done to make sure your new adult is properly cared for?

Let’s explore a couple of the options out there.  The first is the least-restrictive alternative.  Texas calls this the Supported Decision Making Agreement.  This is basically a form that you fill out with your child that states you are allowed to assist them in making important decisions for themselves, but ultimately allows for your child to have the final word. This form also allows for you, as the designated support person, to be present with the child whenever they are making these decisions or discussing their options with professionals, such as doctors or school advisors.  This document can be paired with a Durable Power of Attorney for helping the person with financial decisions and a Medical Power of Attorney for helping with Medical Decisions.  

In the case where your child does not have the capacity to make or understand medical, educational and financial decisions, guardianship may be appropriate.  Guardianship is the legal process by which a court removes some of the decision-making rights from one person and grants the authority to make those decisions to another person.  In most cases, the person granted the rights is a parent, sibling or close relative.  The first step in the guardianship process is for a doctor to complete a Certificate of Medical Examination (CME).  Once that examination is complete, an attorney will file an application for guardianship with the local probate or county court in your county.  If the court finds that a person is incapacitated and there are no lesser restrictive alternatives, the court will appoint a guardian.  The potential Guardian will have to go through an initial background check and then once appointed, they will be required to file an annual report and an annual accounting with the court each year.  

The process of appointing a guardian can take as long as six months to a year under the current court process, so it is a good idea to start early if you think you may need guardianship.  The process can be started as early as 180 days prior to the child’s 18th birthday.  Guardianship is not always necessary, but when it is necessary, you want to make sure you get it done quickly and efficiently.