My special needs child is turning eighteen. What is the difference between a power of attorney and guardianship? 

[11.12.2021]

When a child turns 18, legally, that child becomes an adult. Although many children continue to rely on their parents even after 18, a parent’s legal ability to make important decisions for their child ends when the child reaches that age, and the right to make financial, educational, and medical choices shifts to the newly minted adult. This can be concerning for any parent but is especially problematic if you are a parent to a special needs child.

There are options available under the law to ensure you can still make decisions for your special needs child even after their 18th birthday.

These options include Power of Attorney and Guardianship, which allow parents to maintain the ability to make legal choices for their adult child when that child lacks the capacity to do so for themselves. Here’s a quick look at these two important legal arrangements for caring for your Virginia special needs child:

Virginia Power of Attorney For Special Needs Children

Although it can sound daunting, Power of Attorney is simply a legal document used to give one individual the power to act on behalf of another individual. Signing a Power of attorney document allows the named person to make legal decisions for another person including financial, educational, and medical decisions.

Power of attorney does not require court involvement but does require that the child understands the document. It can be effective immediately upon signing. This document allows parents to do things for their adult child such as open a bank account, apply for benefits, or make schooling choices. If a power of attorney is created for health-related decisions, a parent can make choices on behalf of their special needs child regarding the medical treatment the child may need.

Virginia Guardianship for Special Needs Children

Guardianship requires court involvement. When a court determines that a person lacks the capacity to care for and make choices for themselves, the court will appoint a guardian. When a child has special needs, parents may file a petition with the court to be appointed as guardians for their adult child. This way, even after age 18, parents can still make decisions on how to best provide for the welfare of their child.

A guardianship requires a determination of competency—both the parents and the child are represented, and the court makes a determination of the child’s competency. If the child is unable to make decisions or take care of himself or herself, or cannot understand enough to sign a power of attorney, guardianship can be the best means of protecting parental rights to make decisions on behalf of their adult child.

Trying to determine the best way to protect your ability to make decisions for your special needs child can feel overwhelming. Speaking with a caring and experienced estate planning attorney can help calm your concerns and put together the plan that is best for your family.

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

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