Wednesday, June 8, 2022

Protecting People with Special Needs: Guardianship of Young Adults

Most parents are conflicted when their children reach their 18th birthday.  For many families, that means their child will soon be leaving home for college, a new job, or the military.  For parents of children with developmental disabilities, it can be very scary when that child turns 18, because the law presumes an 18-year-old is an adult with the legal rights and responsibilities that come with adulthood.  When a child turns18, the parent no longer has the legal authority to make decisions for that child.

Joshua, a good-looking young man with a developmental disability, turned 18 six months ago.  Josh is friendly and outgoing.  They say he never met a stranger.  Josh, who functions intellectually on the level of a second grader, has been known to give his lunch money away on more than one occasion.  Josh does not tell his parents when he is feeling sick, and once cut his arm and used the wall to stop the bleeding. His parents came to me because they are conflicted about whether to seek guardianship of Josh.

Guardianship is a legal relationship created by a court. The guardian has the legal authority to make decisions about the healthcare and living arrangements of another person, called a ward.  The guardian also has the duty to look out for the welfare of the ward.  The relationship is very much like that of parent and child, where the law presumes that the ward is not able to make his or her own decisions about his or her healthcare or living arrangements.

Whether to seek a guardianship can be a difficult decision because parents want their children to gain independence, to learn to function in the world on their own and to make their own decisions.  When someone becomes a ward, they lose the legal ability to make healthcare decisions, to choose where to live, to enter into contracts, and to marry. 

Guardianship in Georgia is granted if the adult “lacks significant capacity to make or communicate significant responsible decisions” about his or her health or safety.  In order to decide whether to grant a guardianship, the court reviews a petition filed by the proposed guardian, appoints a professional to evaluate the proposed ward, and then holds a hearing in the courthouse to gather evidence about the decision-making ability of the proposed ward.

Josh’s parents ultimately decided that they need to become Josh’s guardians in order to continue to make decisions about his healthcare and where he lives, but also to ensure that he would not be enticed into signing any contracts that might bind him to spending money he doesn’t have.  Although they would like for Josh to get married someday, I explained that they can petition the court if and when Josh meets the right person and they believe he is mature enough to marry.

Please give our office a call if you have questions about whether you might need to seek guardianship of a young adult.

Next week, we’ll talk about when guardianship of minors, when that might be necessary and how to choose guardians for your minor children.

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The Elrod-Hill Law Firm,LLC assists clients with Estate Planning, Veterans Benefits, Medicaid, Elder Care Law, Probate, Special Needs Planning and Pet Trusts in the North Atlanta area including the counties of Dekalb, Gwinnett and Fulton.

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