Guardianship For Young Adults
At the age of 18, our children are deemed adults and receive all of the rights and responsibilities associated with adult status. Parents no longer have the automatic legal authority to make educational, medical and other decisions for their children. Parents can find themselves suddenly closed out of conversations about educational plans or unable to access health information for their child.
If your child is not able to understand financial and medical decisions, you may need to become his or her guardian. You should begin thinking about this before your child reaches adulthood – usually by age 17 ½.
GUARDIANSHIP & CONSERVATORSHIP
A person who is not capable of making adult decisions is considered incapacitated. A guardian is appointed by a court and to make decisions about the incapacitated person’s:
The incapacitated person loses the legal right to make those decisions. In Virginia, the court-appointed person to manage finances is called a conservator. Young adults often do not need a conservator, because most have little in the way of financial assets. A representative payee can manage Social Security or Supplemental Security Income benefits. A trust can hold personal injury or other settlement funds, for a minor or an incapacitated adult.
DUTIES AND ONGOING SUPERVISION
As a guardian or conservator, you become a fiduciary for your child. You are responsible for making decisions for them, in accordance with their preferences to the extent possible.
The guardian and conservator are required to make periodic reports to designated officials. The guardian reports to the county social services agency on the well-being of the incapacitated person. The conservator provides to-the-penny accountings of the assets they manage to the commissioner of accounts. Conservators must be very careful to keep their personal funds and the conservatorship funds separate at all times.
ALTERNATIVES TO GUARDIANSHIP AND CONSERVATORSHIP
Some young adults with special needs are able to make adult decisions, with sufficient time to think through alternatives. They may be able to execute the medical and financial powers of attorneys, like other adults.
Even if guardianship is needed, it can be limited in scope. Most frequently, the right to vote is preserved. The court order can specify only the areas – such as medical and residential decisions – that the guardian needs authority over, leaving the young adult in charge of other areas – such as socialization and educational decisions. Even in the context of full guardianship, the guardian should encourage independence and support participation in decision-making by the young adult to the extent possible.
SEEK LEGAL SUPPORT FROM A QUALIFIED LAWYER
Before proceeding with a guardianship or conservatorship, see an attorney to discuss your family’s circumstances. Depending on your child’s abilities, there may be less restrictive alternatives to guardianship. Attorneys who are knowledgeable about guardianship and conservatorship usually include elder law or special needs planning in their practice areas.
Contact Hale Ball Carlson Baumgartner Murphy, PLC for more information or to make an appointment.
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