As the parent of a child with special needs, you’re used to advocating for them in the special education system as they grow up.
But what happens when they turn 18 and become an adult?
They’ll still need support. Their rights will still need protecting.
Creating a legal structure called a guardianship can be a key piece in making sure your now-adult child with special needs has a secure future. Guardianships assign people—in this case likely you as their parent—to make important decisions for your child.
In New York, once a child reaches 18, state law says he or she becomes an “emancipated” adult. This applies to people with disabilities just as like everyone else turning 18.
So as your child approaches 18, it’s time to plan for their life as an adult with disabilities.
You’ll need to decide what kind of assistance they will need going forward.
Speak with a guardianship attorney to discuss your options.
The special needs planning lawyers at the Cuddy Law Firm help families navigate these complicated decisions.
When you get a plan in place for how your child will be cared for, it lifts a burden and eases your stress.
Keep reading for an introduction to guardianships.
New York has two types of guardianship, which work differently.
New York Article 17a Guardianship:
Article 17a guardianship is for adult children with developmental or intellectual disabilities.
It’s a broad form of guardianship, covering most aspects of the life of the person with disabilities, including health care, housing and job choices.
Article 17a guardianships include these characteristics:
- You need two doctors to confirm the person’s level of impairment and need for guardianship.
- It’s usually established in a surrogate’s court, which is a type of court that handles cases such as guardianships, adoptions, wills and estates.
- You can name someone who will take over administering the guardianship when the original guardian is no longer able to do it.
This may be the right option for your family member if their impairments leave them mostly unable to make major life decisions—and that will likely remain true for life.
New York Article 81 Guardianship:
Article 81 guardianships are less sweeping than Article 17a arrangements.
These guardianships allow you fine-tune which areas of decision-making the guardian oversees.
For example, it could be limited to helping the adult with disabilities with financial decisions.
Or it could focus on helping them make employment decisions.
It doesn’t necessarily govern most areas of the person’s life, like a 17a guardianship.
This type of guardian could be a guardian of the person individually. Or they could serve as a guardian of the person’s property.
Article 81 guardianships are often used to manage the personal business of elderly people who are experiencing decline and have lost the ability to handle their own affairs.
But they can also apply to younger people with disabilities.
You can navigate guardianship options on your own. But having a special needs planning lawyer who works with these arrangements every day can give you more confidence that you’re making the right decisions—and also save you the legwork of filling out forms, submitting documents and speaking in court.
So you can rest assured that your loved one with special needs has all the legal protections available, talk to the special needs attorneys at the Cuddy Law Firm.
Another Option Besides Guardianship: “Supported Decision Making”
What if your adult child with disabilities can mostly take care of themselves on a day-to-day basis, but they need some extra support in making big decisions—and you want to be sure they get that support?
That’s when you may not need a guardianship, but instead an arrangement called “supported decision making.”
Under supported decision making, a group of people is appointed to help the person make certain decisions.
This is for someone who can understand and contribute to these decisions themselves.
It gives them more independence than a guardianship, but also the backing of a team.
It can be a more formal version of the regular advice that family members and loved ones might normally provide.
Talk to a special needs planning attorney to work through whether a supported decision making arrangement would be best for your child, and to design how it will work and get it established.
Your attorney can also help you weigh guardianships and other special needs estate planning matters, such as special needs trusts.
At the Cuddy Law Firm, this is what we do.
Let’s make sure your family is on a secure path.