“Thought for the Day” #938 – by Stephen R. Elville, J.D., LL.M.

March 31, 2017

If a child with disabilities is incapable of making personal or financial decisions once he or she reaches the age of majority, a parent, or anyone else who is an adult, is not incapacitated, and does not have a significant conflict of interest, can petition the court to be appointed the adult child’s guardian or conservator (the terminology is different in different states). The downside is that guardianship and conservatorship requires a court process, which can be time-consuming, costly and emotionally trying for the person with special needs and his her family.  In order to protect against abuse, the individual who is the object of the guardianship or conservatorship proceeding (the “ward”) will be represented by her own attorney and the court must determine if the disabled person is incapable of making her own decisions.  In cases where someone is appointed to make financial decisions, the court may require that person to be bonded, file annual financial statements, and request the court’s permission before dealing with the property of the person with special needs.  This is meant to increase oversight and protection, but it also decreases family control, and in some cases, flexibility.