Guardianship for a Special Needs Child Approaching Adulthood

When a person reaches the age of 18, he or she legally becomes an adult and has the right to make his or her own medical and lifestyle decisions – for example, how often to go to the doctor, which medications to take, and where to live.  After the child reaches 18, parents no longer have the legal right to make those decisions for their children, nor do parents have a legal right to the child’s medical information protected by federal privacy laws.  For some special needs children, it may be in the child’s best interests for parents to remain in the parental role past the child’s 18th birthday.

The legal mechanism that provides parents the authority to continue to make lifestyle and healthcare decisions for adult children is legal guardianship.  When children are minors, the parent is already considered a legal guardian.  However, to be appointed as guardian of an adult, court appointment is necessary.  In order to establish guardianship of an adult, the proposed guardian must petition the Superior Court.  Once the Petition is filed, a hearing will be set.  Usually that hearing will be scheduled within four to six weeks from the date of filing.  There are a number of procedural requirements that must be fulfilled prior to the hearing, and the assistance of an attorney can make this a much smoother process.

For parents of special needs children, the Arizona statutes allow for the Petition to be filed within the six months prior to the child turning 18, in addition to the option to file after the 18th birthday.  In this situation, assuming the parent is appointed as guardian, the guardianship will be effective on the child’s 18th birthday.  Seeking appointment prior to the 18th birthday can be very useful, especially in situations where the child has ongoing medical issues that may need to be addressed.  Addressing those issues could prove very difficult absent legal guardianship.

Without doubt, establishing guardianship presents challenges and is an investment of time and energy, but it may be the only way to protect the interest of a special needs child entering adulthood.  The decision to seek guardianship can be a difficult one and there are many things that should be considered before filing a Petition.  If you have questions about whether guardianship is right for you and your family, you should seek the guidance of an experienced guardianship attorney.

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