in Guardianship
To assist families in protecting their loved one’s future, the Disability Law Group at Javerbaum Wurgaft offers expertise in guardianships for both individuals who have developmental disabilities or lifelong impairments as well as those who become disabled as the result of an accident or medical malpractice.
Guardianship for Individuals with Disabilities:
When a child turns 18 years old, in the eyes of the law, that individual is emancipated and able to make his/her own decisions. When children have special needs which limit their ability to make decisions or fully care for themselves, emancipation can cause difficulties for their families in appropriately caring for them. In New Jersey, the law allows parents to retain the ability to care for and protect their special needs adult children as they have been for all of their adult children’s lives. Guardianships can be comprehensive or, depending on the individual’s needs, limited, allowing the individual to retain the freedom to make certain decisions. For example, a Court can preserve an individual’s right to vote, even though the individual is in need of a full guardianship. The process requires the filing of documents with the Court, including two physician certifications (or one from a physician and one from a licensed psychologist) which are completed within thirty days of the guardianship application.
The following are some reasons for considering a guardianship for a special needs adult child:
- Education: Unless guardianship is awarded, School Districts must consider an individual who has turned 18 to be independent and able to make his/her own educational decisions. Because many special needs adult children are entitled to educational services until they turn 21, a parent without guardianship may be excluded from IEP meetings and unable to advocate on behalf of their adult child.
- Healthcare: When a child turns 18 years old, he/she is considered an adult in the eyes of the law. He/she is presumed to be competent and able to make his/her own decisions. Doctors and other health care providers must protect an individual’s privacy. They are restricted from discussing the adult child’s medical care with anyone, including the child’s parents, without the adult child’s consent. This becomes complicated in the case of a patient with developmental disabilities or special needs that impairs his/her mental capacity. Even if the adult child does give consent, such consent may be ineffective due to the individual’s lack of mental capacity. Consequently, a health care provider may refuse to discuss the individual’s medical treatment with his/her parents.
- Finances: Another concern is protecting an adult child with special needs’ finances from individuals who may seek to take advantage of his/her because of his/her disability. An adult child can enter into contracts and maintain bank accounts which can be exploited. This is of particular concern if the adult child has significant funds.
- Applying For Guardianship: Parents of a special needs child who is nearing his/her 18th birthday should consider applying to the court in the county in which the adult child lives to be appointed as their child’s legal guardian. Although guardianship applications can be made at any time in a person’s adult life and are routinely made for older adults when necessary, applying for guardianship as soon as the child turns 18 will allow parents to continue safeguarding the adult child’s assets and to make critical decisions during adulthood.
Guardianships are also critical for adults that become disabled due to accidents, age related infirmities or as the result of medical malpractice.
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