What You Need to Know About Children with Special Needs & Guardianship
All parents face stress as they watch their children grow into adulthood and try to guide them on their life’s journey. Parents of children with special needs face even more challenges as their child reaches adulthood.
In Alabama, a child is considered an adult at age 19 (18 with the Social Security Administration which operates under federal law). Upon reaching age 19, the child will be considered to be a competent adult able to make his or her decisions. The parents lose all rights to make decisions for the child. This means that the parents have no authority to make medical decisions, financial decisions, or any other decisions for the child. This is true even if everyone associated with the child agrees that the child is disabled and not capable of making decisions.
Practically, parents often continue along for many years after the child reaches 19 without any problems because the child’s treating physician typically continues to work with the parents. Additionally, Social Security will usually allow a parent to be a representative payee and receive the child’s SSI check. However, eventually, an issue will arise where the parents are told that they have no authority to make decisions for the child. Typically, this happens when the child goes to a different doctor and the doctor refuses to talk to the parents; or, the parents want the child to attend a special event, try a new therapy, or enter a facility for some type of treatment. At that point, the parents are told they have no authority to release liability on behalf of the child, authorize the treatment, or force the child to go anywhere. The parents may even be told they cannot see the child’s medical records or be told the medications or treatments that are being administered to the child.
What can parents do in this situation? The parents need to be named the legal guardians for the child. To be named as the guardians, the parents will want to hire an attorney and go through the process of being named guardian by the probate court. Once this is done, the parents will have all the decision-making authority to manage the disabled child’s life and provide for his or her well-being.
Partner, Bradford & Holliman, LLC
Practice focuses on estate planning, elder law and special needs trust.
This article is for educational purposes and is not intended for specific legal advice.