By Amy Shafer Adkins
Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
If you are the parent of a special needs child, whether your child’s disability is based on a diagnosis of autism, cerebral palsy, intellectual disability, or otherwise, you have been caring for your child and providing for your child’s wants and needs, including making medical decisions and other decisions for them, likely from birth. All parents are legally able to make decisions for their children as long as they are minors. Minors are defined as anyone less than eighteen years of age.
You might be surprised to learn that although your child’s disability has not changed, when they turn eighteen, the presumption is that they are capable of making their own decisions. If your child is still enrolled in school, the school administrators may tell you that they can no longer discuss your child’s education plan with you. If your child sees a doctor, the doctor may refuse to discuss your child’s treatment with you.
So what should you do if you believe that your child’s disability will continue when they are eighteen and that it makes them unable to provide for their own needs, care for themselves, or manage their own finances?
First, you need to determine if your child is truly incapacitated under the legal definition.
The Texas Probate Code defines an “incapacitated person” as being: “An adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.” An attorney can help you make this determination and decide whether there are any feasible alternatives to having you step in to make decisions for your child.
If the legal requirements are met, you will then file an application to be appointed as the guardian of your child’s person and, if they have any property, guardian of your child’s estate. In Texas, parents are able to file for guardianship over their special needs child up to one hundred and eighty (180) days before the child’s eighteenth birthday. The timeline allows an opportunity for the guardianship to be created before medical providers, school officials, and other persons start denying your ability to act on behalf of your child. The guardianship takes away certain legal rights from your child, including the right to make medical decisions, determine his/her residence, and manage his/her own property. The guardianship creates legal authority for you to act for your child in providing for their care, manage their finances, and make various other decisions. The court will issue you Letters of Guardianship that you can show to banks, schools, doctors, and other persons to show your ability to act. You will then report to the court annually on your child’s welfare and also on the status of his/her property if you are guardian of the estate.
Often, children with special needs qualify for social security and/or Medicaid benefits and may receive a monthly income. In that situation, Social Security has already made a finding of disability for your child, and you can be appointed as representative payee for their monthly award without the need for court action. Your status as representative payee will not change at the time your child turns eighteen (18). It is, therefore, important to note that you will not need to be appointed as guardian of the estate of your child if the only property they have is the right to social security income, and you will, therefore, be free from filing an annual financial accounting.
Lastly, you need to make a plan for protecting your child’s interests in the event that you predecease him/her and they will inherit property from you. Specifically, if your child is receiving governmental benefits, you will not want an inheritance to count against their eligibility for any needs based program. An attorney can help you establish a special needs trust that shelters any inheritance from being counted against him/her and also provides for the ongoing care for your child and distribution of funds according to your intent.
© 2018 Amy Shafer Adkins
Amy Shafer Adkins is a 2005 graduate of the University of North Carolina at Chapel Hill School of Law. She has been practicing law for over 12 years and concentrates her practice in the areas of family law, guardianship, and bankruptcy. Ms. Adkins is an associate attorney in the firm, Currin, Wuest, Mielke, Paul & Knapp, PLLC (“CWMPK”) located at Three Kingwood Place, 800 Rockmead Dr. #220, Kingwood, Texas. In addition to the areas in which Ms. Adkins practices, other attorneys at CWMPK concentrate their practice in areas of estate planning, probate, family law (including divorce and custody issues), business operations and formation, construction, real estate, and litigation. For more information, please call 281.359.0100 or see the CWMPK website at www.cwmpk.com.