June 1, 2013
As a child with cognitive disabilities nears his or her 18th birthday, parents often wonder whether they should seek a guardianship over their child. The short answer to this question is, "it depends." In most states, a parent is deemed to be the legal guardian of his or her child until the child turns 18. Until 18, parents have the legal authority to make decisions (medical, financial, etc.) for their child. Most providers of services, including physicians, dentists, and school personnel, do not question this authority when the parent is in charge of his or her minor child and the parent is making decisions, recommendations, and participating in all of the areas where a child needs to be represented. The minute the child turns 18 years of age that authority ceases. The parent must then decide whether to seek decision-making authority for the child, and if so how much authority. The person given the authority to make decisions is called a guardian.
A guardian is appointed by the probate or surrogate court for an incapacitated person (sometimes called a "ward" or "respondent") and the guardian can be in charge of some or all personal affairs of the incapacitated person. In some states however, the financial affairs of a person are dealt with separately by a person called a "conservator." Therefore, in a case where an incapacitated person has assets that need to be protected and invested, it may be that both a conservator and a guardian are appointed for the person. In most cases the guardian and conservator is the same person.
Not every child who has disabilities needs to have a guardian. If the child is able to make good decisions, ...
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by: Hyman G. Darling