Winston Law Group

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Setting up a Guardianship for Adult Disabled Child (or Other Family Member)

Do I need a Guardianship for Adult Disabled Child?

Parents frequently tell us that they have been told by someone such as a medical provider or institution administrator that their disabled child must have a formal guardianship granted by the Probate Court when the child reaches adulthood, which in Massachusetts is age 18. Unless the child obviously has very little or no judgmental capacity, our usual response is to first evaluate from a legal and medical perspective whether a less formal or restrictive alternative is available.

There are two formal court procedures, a guardianship and a conservatorship. The guardianship puts decisions for living arrangements, schooling, medical treatment, and all other authority for the individual’s well-being into the hands of a third party, often a parent or other family member. It is akin to the same authority that a parent would have over a child before reaching majority age. Certain medical decisions may be restricted under a guardianship by the court, such as the prescription of antipsychotic medications or institutionalization. A conservatorship only controls the property of the disabled child. The two procedures can both be allowed by the court for the child, or the child may only need one or the other. Different or multiple individuals may serve as guardians or conservators.

Is a less restrictive alternative available for a guardianship? Taking into consideration teenage immaturity and psychological growth phases that young adults go through, we ask a number of questions of the parents to make this determination. Does the child have the capacity to understand what it means to grant authority to a parent to continue to make important health care decisions? Can the parent and child communicate, even in a simplified way, why the parent is making the decision on behalf of the child? Will the child agree, accept, and continue to trust the parental decision?

Likewise, is a conservatorship necessary? Does the child have cash assets or other property that must be managed? Does the child have the understanding to grant authority to a parent over property? Will a dispute develop if the parent will not allow the child to spend the child’s money at will? Will the child change his or her mind and withdraw authority as a way of controlling the relationship? If only Social Security or other public benefits are involved, the agencies often have their own form of fiduciary procedure other than a conservatorship.

Similar to competent adults who are not disabled, an adult disabled child can grant authority for medical decisions to a parent under a Health Care Proxy and HIPAA Medical Release. The adult child can also grant authority for property related decisions under a Durable Power of Attorney. These documents may be limited or expansive depending upon the situation. The key to their use is that the child adequately knows and understands what he or she is granting at the time that the document is signed. That determination is often left to a combined legal and medical determination by experts skilled in this area of law and medicine.

The big advantage to their use is that creation of these documents is relatively simple and inexpensive. There is no public notice of incapacity as compared to the Probate Court procedures. There is no ongoing reporting or court procedures. As the child matures, the parental oversight can be increased or reduced depending upon situational needs and the ups and downs of the child’s growth and development. Once granted, they can stay in effect regardless of the individual’s progressive deteriorating condition.

However, a Health Care Proxy and Durable Power of Attorney can be revoked instantaneously by the child if the child then has the capacity to know what he or she is doing. Sometimes this occurs when the authority is most needed, such as when an important event occurs like a hospitalization or receipt of a large amount of funds. Parents need to weigh all of these advantages and disadvantages when deciding how to proceed.

Neal_LinkedInNeal Winston is the principal of Winston Law Group, a Boston law firm specializing in estate planning, probate, special needs planning, elder and disability law. A nationally recognized expert on special needs counseling and trusts, and public benefit programs, Neal is frequently requested to lecture and train other attorneys and professionals that work in this field.

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