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In the last chapter, you learned about the Mental Capacity Continuum. If your child lacks total mental capacity to make their own decisions, then the factors in this chapter are likely irrelevant. You will likely petition for plenary (full) guardianship. Conversely, suppose your child has the mental capacity to make their own decisions even though they may struggle with various emotional or social issues. In that case, your child will likely sign powers of attorney.
But what if your child lands somewhere in that middle area of the mental capacity continuum – the Gray Zone?
In that case, what to do is less clear. You want to listen to your child’s doctor’s or neuropsychologist’s advice regarding whether or not guardianship is appropriate. And you want to listen to your attorney’s advice about practical legal matters.
This chapter discusses some ancillary practical factors you may consider. The factors below are not ranked in order of importance. Some factors may apply to your situation, and others may not. These factors are not legal requirements listed in any guardianship statute.
Driving a Car
One factor that can tip the scale with my clients is whether the child already drives or the parents think their child may drive in the future. If your answer is "Yes," you will be more likely to decide to have your child sign powers of attorney. If your child has the mental capacity to drive (or may drive in the future), your child likely has the mental capacity to sign powers of attorney.
That conclusion makes sense, right? With powers of attorney, your child keeps their legal autonomy. Accordingly, your adult child would have the right to drive. The opposite also makes sense, right? If you were the plenary guardian of the person for your child and your child was adjudicated disabled and essentially considered a child in the eyes of the law, then it would be unsafe and illegal to allow a "child" to drive.
Furthermore, there are potential liability issues. What if you were plenary guardian for your child’s person, and nonetheless, you gave your child the keys to your car to drive? Then your child hits and injures a pedestrian. Do you think the plaintiff's attorney could argue that you were negligent in giving those keys to your child, who was already adjudicated disabled? You bet.
I’ve talked to many parents who obtained plenary guardianship of the person for their child as soon as their child turned 18. The parents assumed that was what they were supposed to do. Years later, their child started to drive the family car. These parents are clueless that their child's driving is illegal and exposes them to liability.
The topic of driving me reminds me of another unrelated issue. You will want your adult child to have a proper state-issued picture ID. For example, if your child does not qualify for a driver’s license because you are a plenary guardian for your child, obtain a state-issued picture ID. And if you plan to travel outside of the country, you may also need a passport for your child.
Some clients tell me, “Mark, my child hasn’t a clue about money. We need to get guardianship.” It's true if you become a plenary (full) guardian for your child, any contract your child may sign, whether it’s a credit card application or an agreement to buy a car, is void and unenforceable. However, be wary of allowing these potential financial concerns to tip the scale toward getting guardianship.
You do not have to worry about your child managing their inheritance. You should leave the inheritance to a third-party special needs trust (See Part III). After you die, the successor trustee of the special needs trust -- someone you choose -- will manage the inheritance for your child's benefit.
What about other potential financial problems? For example, what if your child uses a credit card recklessly? Or does a salesperson take advantage of your child and sell something unnecessary and expensive? Although these are potential problems, you do not want the “cure to be worse than the disease.” Just because your child might someday have a financial problem is not by itself a sufficient justification to become a plenary (full) guardian of your adult child, stripping away your child’s legal autonomy. That's not to say if your child needs guardianship because your child totally lacks the mental capacity to make their own decisions — then sure, guardianship is appropriate.
If your child’s mental capacity is relatively high or even if your child lands in that middle Gray Zone, a legal solution like guardianship to address these financial concerns may not be the most appropriate solution. A more appropriate solution may be developing your child’s financial skills. Alternatively, you can ask your local banker about putting restrictions on a financial account that limits spending amounts or setting up a True Link Card. These options will not guarantee your child's financial safety, but they may be more appropriate than getting plenary guardianship and having your child lose their legal autonomy.
As parents of young adults, we all have to learn at times to let go and let our children make mistakes. I love the idea of the Dignity of Risk. Hopefully, they will learn from those mistakes. We can’t protect them from all risks.
And let’s assume a worst-case example: Your child gets into credit card debt. I may sound harsh, but it’s not your problem. You are not liable for your adult child’s debt. If a creditor wants to waste their time chasing after your child, who likely does not own any assets, so be it. Your assets are safe. And any assets in your child’s third-party special needs trust will likely also be safe from your child's creditors.
There is also another less common legal option. You could petition the court to become a limited guardian over various financial matters. With limited guardianship, your child is not adjudicated incompetent. The guardian has limited authority to make decisions in various financial matters. We will discuss limited guardianship in a later chapter about different types of guardianship.
Finally, these decisions are very case specific. For example, if an older person who has been independent their entire life now has Alzheimer's, and the person owns assets, and there is not a trustee or agent under a power of attorney to manage the assets, having someone become the guardian of their estate would protect the person from mismanaging the money.
Mental Health Issues
If you have an adult child with mental illness who will not take their medications or refuses to admit themselves into an inpatient facility for treatment, I empathize with you. My brother had a mental illness. However, guardianship will likely not help you on such matters. Your state’s mental health code will likely control such issues.
It’s not to say guardianship is inappropriate for all people with mental illness. For example, your adult child may be dual-diagnosed with mental illness and an intellectual disability. However, suppose your only motivation for guardianship is either to consent to psychotropic medication or to place your child in an inpatient facility for treatment. In that case, guardianship will probably not be the appropriate legal solution.
A state’s mental health code balances the need to care for people with mental health issues, protect society, and honor the individual's right to liberty. If you have a child with mental health issues, you should ask any attorney you are considering hiring if they have experience working with such matters.
For example, in Illinois, where I practice law, even if a parent obtains plenary guardianship of the person for their child, the parent does not have the authority to make various decisions for their adult child, such as admitting the ward to a mental health facility, without the consent of their ward or overriding the ward’s decision to refuse treatment in a non-emergency situation without petitioning the court.
Most of my clients with a child with mental illness start by having their adult child sign powers of attorney for healthcare, property, and a mental health declaration. And if, for some reason, those powers of attorney do not work because the person with mental illness revokes them or refuses to sign them, the next step may be to petition for some type of limited guardianship. Of course, suppose the mental illness is so disabling that the adult child lacks total capacity to make their own decisions. In that case, the parent may have no other option than to petition for plenary (full) guardianship of the person.
You should ask your attorney what document(s), if any, your child can sign that will give you the legal authority under certain circumstances to act on behalf of your child regarding these two issues:
- Consenting to treatment such as psychotropic medications or electroconvulsive therapy treatment (ECT);
- Making an involuntary admission into a facility for inpatient treatment.
Some parents fear if they become plenary guardians of the person for their child, it will increase their liability exposure. After all, if you are a guardian, you have a duty to supervise your adult child. Accordingly, if your child were to get into a fight and hurt someone or your child damages someone's property, and you did not provide a proper level of supervision – you could be held liable for damages.
I wouldn’t worry too much, though. Over my forty-plus years as an attorney, I have never witnessed a guardian being sued. Furthermore, if your child is under supervision at school or a residential or day program while your child is under that facility's supervision, it would be unlikely that you (as guardian) would be exposed to any liability.
What about liability for guardians of the estate?
We'll discuss this type of guardianship in more detail in the chapter on types of guardianship. Typically, this is not an issue because your child does not have significant assets in their name. However, if you are a guardian of your child’s estate, you must manage your child's money as a hypothetical average prudent investor. A guardian of the estate may be liable if careless or negligent in managing the ward's money (or worse, if a guardian steals a ward’s money).
History of Violence
I worked with a parent whose son with schizophrenia put a handgun under his girlfriend’s chin and pulled the trigger. Fortunately, the gun was pointed at a 45-degree angle. Although the bullet tore through her jaw, she lived. I had another client whose son got into a heated argument while in my client’s kitchen and then picked up a knife and ran into their neighbor's yard. If your child tends toward violence, how might that affect your decision to become a guardian?
On the one hand, a history of violence may tip the scale against getting guardianship. Having a guardian's oversight responsibility arguably exposes you to greater liability if your child hurts someone. On the other hand, if your child is jailed, you may have greater access to your child if you are a guardian. And maybe your child will be treated more humanely – as someone with a disability – rather than as a criminal. Some jurisdictions have courts for people with mental illness and other mental health issues.
I recommend you discuss the matter with a local criminal defense attorney, the police, and your guardianship attorney.
Guardianship is like religion or politics: Some people have strong opinions. Whether you petition for guardianship or have your child sign powers of attorney, brace yourself for some people to disagree with your decision forcefully.
Guardianship is controversial because there is a natural tension between your desire to protect your child and the law's presumption that all adults have a right to legal autonomy. Some parents assume the only way to protect their child is by getting plenary (full) guardianship. They may not even be aware of powers of attorney. Other parents focus more on their child's legal autonomy.
I recommend you embrace the cognitive dissonance. Listen to an experienced special needs attorney. As necessary, reach out to a doctor or neuropsychologist to help evaluate whether or not guardianship is appropriate.
When your child becomes a legal adult, patience is likely the last thing on your mind. Many parents are worried about their lack of control and feel pressure to become guardians as soon as possible. However, sometimes you may want to deliberately "kick" the guardianship decision down the road into the future. Of course, your decision will depend on your child’s unique strengths and weaknesses and any doctor’s or neuropsychologist’s evaluations.
When my clients weigh what to do when their child becomes a legal adult, I often ask them, “What kind of work do you think your child will be doing ten years from now?” By the way, I chuckle to imagine what my parents would have said to that question when I was 18. One of the great things about the United States is we can be late bloomers.
I ask the question to reveal to what degree is the child's future development uncertain. For example, I work with many clients whose child has a "moderate to high functioning level.” Although their child is bright in many respects, they may face various social, emotional, or communication challenges. At age 18, it’s too early to predict how the child will develop – what job the child may be able to do and how self-sufficient the child will ultimately become. The adult child may enroll at a community college to learn a skill. However, the parents have no idea whether their child can make it through the program and ultimately get a stable job and earn a living.
Given this uncertainty, parents may not want to "pull the trigger" on the guardianship decision. Once guardianship is in place, a judge has to be willing to modify or terminate the original court order.
Resources in Your Child’s Name
Social Security calls assets your child can convert to cash resources. If your child has countable resources over $2,000 in their name, they are financially ineligible for SSI. Your child will need to make a legally permissible transfer of those resources elsewhere to qualify for SSI, perhaps into an ABLE account or a first-party special needs trust (discussed in Part III).
It’s easier for your child to transfer those resources in their name if they have not been adjudicated incompetent by a plenary guardianship proceeding. If you are a plenary guardian for your child, your child does not have the requisite legal mental capacity to transfer those excess resources. If you are a plenary guardian, you must seek court approval to transfer those resources. And for example, if the court approves the transfer of resources into a first-party special needs trust, the court may continue overseeing your management of those funds with you as guardian of your child’s estate.
Strictly speaking, whether or not your child has resources in their name should not be a factor in determining whether or not guardianship is appropriate. The decision should rest solely on your child’s capacity to make their own decisions. However, in the real world, especially if the adult child is in that middle Gray Area, it is a factor that sometimes is worth consideration.
And, of course, everything is case specific. For example, if your child totally lacks capacity to make their own decisions, and inherits a lot of money, a guardian of the estate (called a conservator in some states) may be crucial to avoid mismanagement.
When choosing between guardianship or powers of attorney, one factor is your child’s medical condition. For example, let’s say your child has Down Syndrome and is in that Gray Zone where one could make a plausible case for either guardianship or powers of attorney. If your child has had a few heart operations and will likely need more, the multiple operations could tip the scales toward guardianship.
First, as you may recall, if your child, as principal, names you as their agent under a power of attorney for healthcare, your child is the “boss,” and you are their agent. If your child does not want the operation and has not become incapacitated, as an agent, you cannot force your child to have the operation.
I often tell clients that their relationship with their child is sometimes more important than any legal document. If your child is not cooperative, sometimes there are no excellent legal solutions. If your child refuses to have the operation, one alternative would be to petition for guardianship. As your child’s guardian, you could legally consent to the surgery. In my 40-plus-year career, a parent has never asked me to get guardianship because their child refused an operation. Nonetheless, it is a factor.
Second, once in my career, an adult child with a disability needed a life-threatening operation. The child’s mental capacity was in the Gray Zone. Since the operation was so risky, the operating doctor wanted a guardian to sign the consent to treatment form.
Third, your child can revoke the power of attorney for healthcare. In my experience, it’s rare for a person with a disability to revoke the power of attorney unless the adult child has a mental illness, especially with manifestations of paranoia.
Imagine you are a single mom with an adult son with a disability. The two of you live together. You do all of the day-to-day caregiving. Your relationship with your former spouse is strained and sometimes contentious. Your former spouse is minimally involved in your child’s life. Now, your child turns age 18.
If you petition for guardianship, the legal process will require you to notify your son’s father about the guardianship hearing. If your former spouse wants to be a co-guardian with you, the court will likely grant that request. That means if you and your former spouse disagree over how to care for your child, you may have to resolve your disputes in court which will likely be expensive and unpleasant.
Assume your child’s mental capacity is in that middle Gray Area; these situations could point the arrow a little more toward powers of attorney and away from guardianship. Of course, if your child does not have the requisite legal mental capacity to sign powers of attorney, you’ll have no choice but to go with guardianship. With powers of attorney, unlike a guardianship hearing, the former spouse is not legally required to be notified. The involved parent becomes the child’s substitute decision-maker without being locked into a co-guardianship with the difficult former spouse.
Of course, if the parents have a good relationship regarding their children, then co-guardianship will likely work just fine.
Parents often call me about a year before their child turns 18. These concerned parents want to know what they can do right now. I tell them to contact me about two or three months before their child turns 18 – to get ready. My clients either petition for adult guardianship once their child becomes a legal adult. Or their adult child signs powers of attorney after becoming a legal adult.
During the meeting a couple of months before the child turns 18, if the parents decide to pursue guardianship, we give the parents a Physician’s Report to be filled out by their child’s doctor. The Physician’s Report is part of the evidence to justify the need for guardianship. In many states, the Physician’s Report cannot be more than three months old from the date of filing the petition. The court wants current medical evidence. If the parents decide they want their child to sign powers of attorney, we schedule a date for the child to sign the documents after their child’s 18th birthday.
Some parents worry about their lack of legal control in the gap period after the child turns 18 but before a guardianship is in place. The most important concern is if a medical emergency arises. Fortunately, to mitigate against this risk, many states have a Health Care Surrogate Statute. Often such a state statute will say if the requisite number of doctors attest to the fact that the unmarried adult child cannot make their own medical decisions, then the parents can act as the adult child’s healthcare surrogate.
If there is a need to protect the person immediately, petitioning for temporary guardianship is another option. A temporary guardianship is a way of getting into court in a couple of days to protect the individual temporarily until the plenary guardian is appointed. Temporary guardianship is discussed in more detail in the chapter on types of guardianship.