A woman walks outdoors with a female teenager with Down syndrome, smiling and laughing together.

Does My Special Needs Child Need a Guardianship?

In Texas, like everywhere else in America, parents have obligations to ensure their minor children have adequate food, clothing, shelter, and medical and educational resources.

In addition to these responsibilities, parents have additional legal rights. This includes the right to make important decisions on a child’s behalf regarding things like medical care, education, and the types of treatment they receive. For children with special needs or certain medical or mental health conditions that make them unable to make such decisions for themselves, having a caring parent (or guardian) who acts in their best interests is essential.

But those rights don’t automatically extend into adulthood. In fact, when a child turns 18, regardless of their condition or abilities, they assume all the rights of a legal adult.

Fortunately, Texas law recognizes that there are situations in which allowing a person to manage their own affairs is simply not possible or not in that person’s best interests. In these circumstances, the state allows for a responsible adult to seek legal guardianship over that individual.

How Does Guardianship for an Adult With Special Needs Work?

In Texas, guardianship is a legal process overseen by the probate court. It is used as a means to protect vulnerable or incapacitated adults (and in some cases minors) from neglect, abuse, exploitation, and other challenges that may befall them should they be left to make important decisions about their life and finances on their own.

By seeking a guardianship, you are asking the court to:

  1. Take away the legal rights of an incapacitated person, or the ward; and
  2. Bestow the ward’s legal rights upon another adult, the guardian.

Under Texas law, a person is legally incapacitated if a medical or mental health condition renders them substantially unable to:

  • Provide for their own basic needs (i.e. shelter, food, clothing): or
  • Care for their own financial and physical well-being.

Though guardianships are often used in situations where a person is unable to manage their own affairs due to a disability, incapacity and disability are distinctly different in the eyes of the law. A disability in and of itself, such as paraplegia, does not mean a person is legally incapacitated.

However, being incapacitated does mean a person is unable to care for their own physical or financial well-being (or both) – whether that inability is partial or total. In situations where a person is only partially incapacitated, such as when they are able to care for themselves but unable to manage their own finances and estate, a guardian’s rights over the ward can be limited.

Understanding your child’s abilities and needs and how they are viewed under the law is an essential starting point in seeking your guardianship.

How Do I Seek Appointment as Guardian Over My Teen With Special Needs?

Texas courts recognize that guardianships are not inconsequential legal relationships.

As a result, the process of seeking guardianship can be complex and cumbersome, requiring a potential guardian to, among other requirements:

  • File the appropriate applications with the correct court for the county where the incapacitated person resides and request a hearing. Larger counties, such as Harris, Dallas, Travis, and Bexar, have dedicated or “statutory” probate court that exclusively deal with probate matters, including guardianships. In other counties, a “county court at law” typically has jurisdiction over guardianship cases.
  • Submit medical / mental health affidavits supporting a ward’s incapacity. Some courts require the person seeking guardianship to file a “Physician’s Certificate of Medical Evaluation” or “PCME” from the incapacitated person’s treating physician that confirms they lack legal capacity, but this is not required in all courts.
  • Demonstrate that they qualify to be a guardian (preference is typically given to parents, but guardians may also be adult siblings, adult relatives, or close friends)
  • Post bond and take an oath

Additionally, petitioners who seek guardianship may also need to address challenges raised by an attorney ad-litem – a lawyer appointed by the court to represent the ward during guardianship proceedings.

After being appointed, guardians may also be required to meet various requirements. For those appointed guardian of an estate, this can include mandatory submission of asset inventories, monthly allowance / expenditure applications, investment plans, and annual accounts of the estate, among other requirements.

Alternatives to Guardianship

In some cases, a child with special needs has physical or mental disabilities but still has limited capacity to manage some aspects of their lives. For example, a child with developmental disabilities may lack to capacity to understand complex financial transactions but still be able to hold down a job and even live independently. Or a child may have physical disabilities that make it impossible to care for their own health and safety but still have sufficient mental capacity to make decisions.

“A full legal guardianship is not required in every case for every child with special needs,” notes Hendershot Cowart P.C. Guardianship Attorney Ky Jurgensen. “There are often less expensive and less intrusive alternatives available.”

The Texas Legislature has recognized that avoiding guardianship can often be in the ward’s best financial and emotional interest. Any family with a child with special needs should consider supports and services that may be an alternative to guardianship, including:

  • Supported decision making agreements,
  • Durable powers of attorney for financial and healthcare decisions,
  • Directives to physicians,
  • The “Representative Payee” Program from the Social Security Administration, and
  • Revocable trusts.

The Bottom Line: Prepare for Guardianship Before Your Child Turns 18

For parents of children with special needs, the key takeaway is that you should never expect you will retain the right to make important decisions on behalf of your child simply because you are their parent. When your child turns 18, they will assume the rights of a legal adult – no matter their condition.

Because of this, it is important to prepare for guardianship proceedings before your child becomes a legal adult, and to consult experienced legal counsel about how you can best seek an arrangement that allows you to continue making important personal and / or financial decisions on their behalf.

At Hendershot Cowart P.C., our probate and estate planning team is readily available to speak with parents across Texas about the process of seeking a legal guardianship, the rights and responsibilities that guardians owe to the ward, and other related matters. Contact us to get started.

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