Do I Need a Guardian or Conservator for My Special Needs Child?

Before undertaking the Probate Court process to protect your special needs child, it is important to make sure there is not a different solution that might be less expensive and less restrictive. Many children with disabilities are able to transition to adulthood and make many of their own decisions, eliminating the need for a guardian or conservator.

First, talk with your child’s doctor about whether or not at age eighteen they believe your child will have the legal capacity to sign a Power of Attorney naming their own agent. This legal document, drafted by an attorney, can allow the child to choose the person who will assist them with certain matters after they turn eighteen. If your child’s doctor believes they have the capacity to execute these documents, speak with an attorney who can draft them with your child’s needs in mind.

You will want to consider the following documents:

Health Care Power of Attorney

A Health Care Power of Attorney names an agent to help the special needs child with doctor’s visits, making medical decisions, and more. This authority would only be effective during periods when the child is unable to make decisions on their own; it cannot be used to override their decision. This document also allows the agent to access medical records.

South Carolina provides a statutory Health Care Power of Attorney Form, which we have provided here. Reviewing its contents might help you determine if this is a document your child can understand. Having this document in place may eliminate the need for a guardian.

Durable Power of Attorney

Executing a Durable Power of Attorney will allow your child to name someone to help manage their finances, apply for benefits, and assist them with any necessary financial transactions. This document will also allow individuals who are still in school to have their agent participate in educational decision making, just as they did prior to the child turning eighteen.

This document is more complex and can be tailored to the needs of the person executing it. It is important to schedule a meeting with an attorney and your child to discuss this document before it is prepared and executed. Having this document in place may eliminate the need for a conservator.

What If My Child Lacks the Necessary Capacity?

If your child’s doctor does not feel they have the required capacity to execute these documents, then it may be necessary to consider becoming their guardian and conservator in Probate Court. Before making this decision, schedule a consultation with a qualified attorney to discuss all of your options.

Here is a checklist of suggested topics to make the most of your consultation:

  • Your child’s current and future assets
  • Your own estate plan
  • Future decisions you are concerned about
  • The difference between a conservator and representative payee
  • The Adult Health Care Consent Act
  • What rights the court may remove and may leave in place

When Should I Start Planning?

The best advice we can give to parents in this situation is to start the process early. Regardless of your child’s needs, their age controls how many laws affect their rights and yours. We have had many panicked parents reach out to us after being excluded from a parent/teacher conference or after their child has entered a binding contract they cannot afford. You should schedule your first consult with an attorney when your child is four to six months shy of their eighteenth birthday and come prepared with his or her most recent medical reports.

Speak to a Lawyer at PMC Law Firm Today

Our seasoned lawyers at PMC Law Firm have years of experience handling a variety of legal matters for clients who have children with special needs. When you choose our firm to represent you, we make protecting your best interests our top priority. Please do not hesitate to get in touch with our legal team today so we can put our skills and knowledge to work for you.

To set up your consultation with one of our top-notch lawyers, call us today at (800) 914-0620.

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