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Special Needs Children Turning 18 Years Old

By Lori K. Murphy, Esq., Bean, Kinney & Korman, P.C.

(Page 2 of 5)
  • Degree to which the child can understand the effects and consequences of his or her actions; and

  • Income and finances of the child and the child’s family.

It is crucial to take the adult child’s needs and wants, if capable of expressing them, into account when determining how to best provide for him or her.  Apart from moral sensitivities, Virginia law provides that fiduciaries in charge of the child’s care allow the child to participate in the process as much as he or she is able.  Further, if the child has no input in the process, it could disrupt his or her relationship with the parents, making the process emotionally taxing on everyone involved.

Guardianships & Conservatorships

Run to the Courthouse

One way to provide continued care for special needs children over the age of 18 is by securing a guardianship and conservatorship.  Adult guardianship is the legal process in which a guardian is appointed by a court to make personal decisions on behalf of the adult child, including decisions about where he or she lives and what medical treatment he or she receives.  In contrast, adult conservatorship is a legal process in which a conservator is appointed to make decisions about an adult’s financial world, including property and estate.  An adult’s guardian and conservator are often the same person, but need not be, and one does not have to seek the appointment of both.  If a guardianship and conservatorship is sought by the parents, an official opinion from a physician must be presented to a court stating the reasons these are necessary.

Virginia law provides that a court order granting guardianship be tailored to rectify the incapacity of the individual.  As a result, guardianship is a particularly flexible system in Virginia: the court order appointing a guardian can be as broad as covering all decision-making or limited to specific decision-making spheres, such as medical care.  Some parents welcome the child’s right to vote, for example, and are pleased to learn that a court order can provide that the adult child retains that right.

When a child does not have the cognitive ability to direct his or her own financial or medical affairs, a guardianship and conservatorship is appropriate.  The parents are relieved to know they can continue to direct the child’s affairs after the age of 18 and welcome the daily involvement.   Most parents of children with mental incapacity determine that a guardianship and conservatorship is the right thing to do for a child who cannot live independently.

 

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