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Legal corner: Parents of disabled children must start guardianship process early

By Kay M. Perry | 502nd Instalation Support Group | March 20, 2017


Military members with children with a cognitive disability must consider whether a guardianship order will be necessary when the child turns 18, the age of majority in Texas (and most states). 

Guardianships are often necessary for situations such as children with Down’s syndrome, chronic head injuries and individuals with developmental disabilities. They are generally not used for treatable mental illness, alcohol or drug abuse/addiction, spendthrifts, or homelessness. Parents can file the application with the court no earlier than six months prior to the child’s 18th birthday, however it is recommended that you start looking for an attorney prior to that time because there are many steps in the process that take place even before filing the legal proceeding. At a minimum, the suit should be filed three months prior to the child’s 18th birthday.

Obtaining a guardianship is a court proceeding where a judge gives an individual or individuals the legal authority to make decisions for someone who cannot make such decisions herself. The parent (or other adult who applies to be appointed) is the “guardian” and the child is known as a “ward” or “incapacitated person.” The law requires the court to consider alternatives before appointing a guardian. Where alternatives are not workable and support and services are not sufficient to avoid a guardianship, then the court can appoint the guardian. The court will limit the guardian’s authority to only that which is truly necessary to encourage development or maintenance of as much self-reliance and independence possible, depending on the level of incapacitation of the child.

To begin the process, one must have an attorney, as most judges (including those in Bexar County) will only allow an attorney to file the guardianship application. Attorneys are typically required by the courts because the guardian will be representing the third party interests of the ward, and under a recent legislative change the attorney must be certified to serve as an Attorney Ad Litem. A physician will have to examine the child and prepare a report which your attorney will file with the court. The physician must be licensed in Texas, so not all physicians who work at military treatment facilities are qualified to prepare a report.

There are time requirements for the examination; for children with Down’s syndrome or IDD the exam can be done up to two years prior to the filing the court proceeding, and in other cases the examination must not be more than 120 days prior to filing.

The application, which begins the legal proceeding, is typically filed in the county in which the child resides. After the application is filed, the incapacitated person will be personally served with notice of the case, and in the case of parents who are divorced then the parent who did not file the application must also be served or file a waiver of service. Adult siblings and other close relatives also must be served with notice of the suit. The applicant will have to undergo a criminal background check. The court will also appoint an attorney ad litem who will represent and advocate for the child, and who will meet with your child to determine his/her wishes. 

A court hearing will then be held, at which time the judge will review the medical information provided and hear from the proposed guardians. The judge will decide right away at the hearing if the guardianship is necessary, what powers the guardian should have, what rights (if any) the child should retain, and whether the person seeking to be appointed is suitable. If the guardian is appointed, he/she will file a bond and swear an oath.

There are a few other issues one  must consider and discussing with an attorney after guardianship is granted. First, in planning one’s estate (will, trust, etc.) it may be beneficial to have a Special Needs Trust created to help the child maintain eligibility for any state or federal benefits to which she is currently receiving. Also, one may want to name a successor guardian in the event they pass away before their child. While naming a successor guardian does not automatically transfer guardianship to that person upon one’s death (he/she will have to go through the same steps you went through), this is helpful to the court and gives the guardian the opportunity to be heard regarding who should take their place. 

With so many steps and issues to consider, be sure to start this process early for ample time to get the guardianship in place upon the child’s 18th birthday.