No disability is exactly the same, making guardianship a case-by-case situation.
Petitioning for guardianship should not be taken lightly.
When someone is given guardianship over another adult, it essentially strips the "ward" of any autonomy or decision-making power.
While such drastic measures may be necessary to protect your child, they may be excessive.
Courts may hesitate to give you or another the full authority of guardianship.
The New York Law Journal recently reported in an article, titled “Noting Human Rights Concerns, Judge Denies Guardianship to Parents of Disabled Adult,” about once such instance.
A judge denied a request by parents to appoint a plenary guardian for their daughter under Article 17-A of the Surrogate's Court Procedure Act. The daughter is in her mid-thirties and has Down's syndrome.
What basis was given for the denial of guardianship?
Evidence demonstrated that the young woman is currently functioning well with just weekly visits from a disability service and the help of family and friends.
With two roommates, she held a job, shopped, banked and took care of daily responsibilities.
The judge wanted to apply the least invasive option.
The judge did not want to intrude on the civil liberties of individuals with special needs, citing international human rights conventions, the Americans with Disabilities Act and the U.S. Supreme Court decision in Olmstead v. L.C.
No I doubt these parents did not want to violate the rights of their daughter,
Like you, they simply want her to be safe and secure.
What are ways to protect your child without removing autonomy?
Have your child:
- Execute a power of attorney for financial and health care decisions; and
- HIPAA paperwork so you can access his or her medical records.
Then, without delay, create a Special Needs Trust (SNT) to provide for the needs of your child after you are no longer around.
Note: Creating a SNT is not a DIY project. This would be ill advised.
Instead, meet with an estate planning attorney to discuss the best options you and your adult child with special needs..
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.
Reference: New York Law Journal (July 27, 2016) “Noting Human Rights Concerns, Judge Denies Guardianship to Parents of Disabled Adult”