By Joel Krooks, Esq.

When a child turns 18 years old, under the law the child becomes a legal adult. This can be a stressful time for parents of children with special needs. Without guardianship in place or advance directives, it may become difficult for parents to continue advocating for their children. Parents with children with special needs have two options.

The first option is to apply to be appointed the legal guardian of the child. In New York, this proceeding is called a 17-A Guardianship. In this proceeding, an individual, usually the parents, petition the Surrogate’s Court in the county the child resides in to be appointed guardian. Along with other testing and documents, two licensed physicians, at least one of who is familiar with or has professional knowledge in the care of treatment of the child with disability or one licensed physician and one licensed psychologist need to provide detailed physician affidavits that the child is in a need of a guardian. After all of the documents are submitted to the Court, a hearing is held to determine if the child qualifies for guardianship. If a guardianship is granted, then the petitioner will have the authority to make decisions for the child.

The second option is for the child to sign advance directives. These include but are not limited to a Power of Attorney, Health Care Proxy and HIPAA. If a child chooses to designate his parents, then the parents can still assist the child in making decisions in regard to his health and finances. Furthermore, if the child signs advance directives, Supported Decision Making should be considered as well.

Supported Decision Making provides for a less restrictive alternate to guardianship for people with intellectual and development disabilities. Through the Supported Decision Making model, a trained facilitator works with the child, and the people the child proposes to designate to support him with decisions, to create a formal agreement. Supported Decision Making is still very new and has some kinks to work out, but, for now, it offers an alternative to guardianship.

The attorneys at Littman Krooks have extensive experience in working with families with special needs children and can assist parents in deciding what is the best option for their family. It is important to contact us when your child is nearing the age 18 to discuss the various options for the child.