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Special Needs Children Turning 18 Years Old

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

(Page 3 of 5)

Slow down

However, guardianship and conservatorship are not always the appropriate tools to protect individuals with mental impairments.  First, the cost to be designated by a court as a guardian and conservator can easily exceed several thousand dollars in legal fees.  Second, a guardian is required to provide significant attention to the incapacitated adult.  Third, the guardian has to report at least annually to the state as to, in part, the living arrangements, mental, physical and social condition, and the scope of services provided and whether those services provide adequate care to the individual.   Furthermore, the guardian directs the living arrangements and health care of the incapacitated individual and often those decisions are challenging.

Conservatorships, in particular, require significant maintenance.  A full conservator is required to post surety on a bond with the court, annually report on all income received on behalf of the adult child, and annually report on all funds expended on behalf of the adult child to the local Commissioner of Accounts.  This means a conservator must collect and keep records of all receipts, checks and bills so he or she can account for all the child’s funds “to the penny.”  Without help from an accountant or financial planner (which can be costly), this can be time consuming.  Many of my clients are working parents, juggling the responsibility of raising multiple children, including the special needs child, so this additional work is burdensome.

Further, a guardianship and conservatorship can infringe upon the child’s independence if it is not tailored toward that child’s needs and level of functioning.  A child who is autistic, for example, may be able to work, earn an income, ride public transportation, and pay rent, and may not need such parental control after the age of 18.  Also, the legal process of obtaining a guardianship and conservatorship over an adult child may be a stressful experience for such a child.

If a guardianship and conservatorship is the right decision for a parent and child, the process is typically instigated about six months before the child turns 18.  This provides sufficient time to obtain the necessary medical, psychological, or psychiatric opinions required, to seek the input of a guardian ad litem (a person appointed to protect the rights of the adult child), and to prepare the court petition for appointment of guardian and conservator.

Powers of Attorney

Let’s get powers of attorney

An alternative to guardianship and conservatorship are the powers of attorney.  A power of attorney is a legal document in which a person (the “principal”) appoints an individual (the “agent”) to make decisions and take action on behalf of the principal.   For our discussion purposes, an adult child who has already attained the age of 18 would execute powers of attorney as the principal and would delegate authority to one or both parents as the agent(s).  The adult child would also name successor agents if the parent was unable to attend to the adult child’s affairs.


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