Originally published by The Law Office of Bryan Fagan, PLLC Blog.
As a parent you are responsible for caring for your child in all areas
of their lives. Making sure they go to school, making sure they eat their
veggies, making sure that they have a place to live and clothes to wear
are just a few of the many responsibilities that you as a parent have.
Your right to do these things for your child are inherent in being a parent
in our State. You do not need to seek these rights out from a court- you
have them as a natural occurrence of your being a parent and living in
our State.
However, once your child reaches the age of 18 these rights all go away.
You no longer have the right to make decisions for your child nor do you
have the duty to provide a minimum level of care for him or her. The law
at that point gives your child (who is no longer a legal child) the right
to make decisions for him or herself in this regard.
The question that I would pose to parents in your position is whether or
not you know how to help your child after their 18th birthday if he or she is not in a position where they can meet their daily
needs and make decisions to help care for themselves. This is what I would
like to help any of you reading this by providing information about attaining a
guardianship for your young adult child with a disability.
You have options to help your disabled child after they turn 18
A good thing for you is that there isn’t just one or two options
that are available to you when it comes to helping your child with daily
decision making and financial survival. You can have power of attorney
in regard to your child and other, more limited abilities to help your
child. You can view these as measures you can take that would not be as
time consuming or controlling as a guardianship. However, if you still
view a guardianship as what is appropriate in your situation then you
have come to the right place. We will discuss the guardianship process
during the remainder of this blog post.
So what does guardianship mean, anyway?
Guardianship of a person (a child or adult) is when an adult who is involved
in the person’s life is given the responsibilities of caring and
decision making in regard to aspects of that person’s life. You
as a guardian can protect and look after your ward (the person whom you
have the guardianship over) because the person is not able to do so themselves.
A court must determine that the person is incapacitated and not able to
manage certain areas of their life. This is a necessary precursor to your
being named as a guardian. Keep in mind that the term “incapacitated”
may mean different things in different contexts. Your child may be physically
able to perform various tasks for him or herself, but may lack in mental
dexterity and proficiency. Or the opposite may be true.
The end goal of a guardianship, from the court’s perspective, is
to be the least intrusive as is possible into their life. Independence
and self-sufficiency may be two words that you do not associate with your
child at the moment but the ultimate goal of yours should be to allow
your child to thrive and live on their own as much as possible- even if
that leaves you a little apprehensive right now.
Taking away rights that your child has and giving them to you is something
that a court will not do unless absolutely necessary. As I mentioned earlier
there are alternatives to guardianship that can be explored and it is
wise to do so prior to jumping head first into a guardianship case. We
will discuss those options in greater detail in the coming days. Another
factor that a court will consider is who your child wants to be their
guardian, if anyone. Finally, the overarching goal of the court will be
to determine what is in your child’s best interest and what will
help achieve that goal.
The legal process behind becoming a guardianship of your disabled child
While your particular situation may wind up looking a little different
than what I am describing below, for the most part you can expect your
guardianship case to look pretty similar to the following outline.
A guardianship case is not straightforward or easy to work on. You should
certainly meet with attorneys to learn more about the process and eventually
hire one to help guide you through the case. There are rules and processes
that are not common to all family or probate law cases that you will need
to learn and operate under in a guardianship case. Some questions that
you will want to ask the attorneys that you meet with are how many guardianship
cases they have worked and what their fees are to represent you.
I should note that the attorneys with the
Law Office of Bryan Fagan, PLLC offer free of charge consultations six days a week. One of our licensed
family law attorneys will gladly meet with you to discuss your situation
and talk with you about how our office is equipped to help you and your
child achieve success.
A form will need to be filled out by your child’s physician to describes
the sort of areas that your child needs assistance and supervision in.
Can your child feed him or herself, make decisions on financial matters
or drive a vehicle? If not these are the sort of limitations that the
physician should make note of. Depending on the type of disabilities that
your child suffers from you may need to request multiple doctors complete the form.
Filing a guardianship petition and having an attorney ad litem appointed
to your case
With this information in hand your attorney will need to file a petition
for guardianship with the district clerk for your county. A judge will
be assigned to your case at which time an attorney ad litem will also
be appointed to represent your child’s interests. You may be thinking-
I thought that I represented my child’s interests. On one level
you are correct. But it could be determined that this application is not
in the best interests of your child. The attorney ad litem will work independent
of your interests to look solely at the interests of your child.
Part of the attorney ad litem’s responsibilities is to act as the
eyes and ears of the judge outside of their courtroom. Whether or not
the guardianship is necessary at all or if there are other stop-gap measures
that are not as intrusive that could be just as successful will be examined
as well. The ad litem attorney will speak to your child (if he or she
is able to speak) in order to learn where his or her strengths and deficits
lay. Their opinion is important and it will be asked for by the ad litem attorney.
The
attorney ad litem’s work will be coalesced into a report that is submitted to your
attorney and the judge. The report will contain a written statement of
their findings as well as their opinion on whether or not the guardianship
is justified or necessary. The report will be a piece of evidence that
the judge uses to determine whether or not the guardianship should be
granted. A letter of guardianship will be printed out and given to you
that can be provided to doctors, health insurance providers, banks or
other entities where it is needed
More on guardianships as well as its alternatives- tomorrow’s blog
post topics
We will continue to discuss guardianships as they related to disabled,
adult children in tomorrow’s blog. Once that topic is wrapped up
we will transition into a discussion on the alternatives that are available
to you as a parent of a disabled, adult child.
If you have any questions about what you’ve read today please do
not hesitate to
contact the
Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our
licensed family law attorneys.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today https://ift.tt/2CcfdYz
via Abogado Aly Website
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