When a child reaches the age of 18, they become an adult in the eyes of the law. In Florida, that means they have the right to be notified and consent to evaluations as well as the right to invite others into IEP meetings and they also have a right to decide the special education and services they receive. As the parent of a special needs child, these rights can be concerning and you may need to consider guardianship over your child.
What is guardianship?
Guardianship removes an adult’s right to make decisions about certain areas of life based on their competency to make those decisions. The law requires that a guardian consider the wishes of the special needs child and to allow them to be involved as much as possible. When you are undergoing special needs planning, it is important to remember that there are several types of guardianship. Understanding what those are and how they work is critical to creating a special needs plan for your child.
Types of guardianship
Under the law, the types of guardianship available include:
- Full guardianship – also known as plenary, gives the guardian all legal rights and powers over a person with a disability. It would mean your child would need to be adjudicated that they are incapable of handling property, money or decisions.
- Limited guardianship – gives the guardian specific rights. Your child may be deemed able to make some decisions but not all of them.
- Emergency temporary guardianship – appointed by the court for a specific amount of time should your child’s safety or property be in imminent danger.
- Voluntary guardianship – should the court decide your child is not incapacitated, the child can file a voluntary guardianship. This type of guardianship can be terminated by the child.
Guardianship of the person or finances
Guardianship can also be broken down into whether it is to protect the person or their finances. A guardianship of the person allows you to make decisions about your child’s physical needs, including where they live, their food, clothing and other day-to-day decisions. Guardianship of finances, usually called a conservatorship, allows you to handle any financial needs for your child, including Social Security disability benefits, Medicaid, Medicare, health insurance and more. It is possible you could be named guardian of both or, if your child can handle some of their needs on their own, you may want to take guardianship of just one of those matters. An attorney can help guide you regarding the type of guardianship as well as whether your special needs planning should include making decisions regarding your child’s day-to-day needs as well as their financial matters.
If you believe you will need guardianship of your child when they become an adult, you should not wait until they turn 18. You could work to put things in place before they reach adulthood to be sure their rights are protected.