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Why Does My Child With Special Needs Require a Guardian?

As parents, we are the natural legal guardians of our minor children. We do not need anyone else to give us the power to talk to our child’s doctor or open a bank account on their behalf. However, in New York, once a person reaches age 18, it is like a switch is turned on and he or she is deemed a competent adult, regardless of physical or mental condition. At that moment, as parents we no longer have the authority to make decisions for our now adult child.

At this point there are two options. First, if your adult child has the requisite mental capacity, he or she can sign a Health Care Proxy (for health care decisions) and a Durable Power of Attorney (for financial matters).

If your child lacks the capacity to sign these legal documents, then you can apply to the Surrogate’s Court to become the legal guardian. This process is referred to as a “17A Guardianship” after the statute that created the process. Once you are named guardian by the court, you will have the legal authority to again make important health and financial decisions for your son or daughter.

If you believe you will need to become guardian for your child, you should begin the process a few months before his or her 18th birthday to allow time to gather the required documentation that you will need for the court. A special needs planning attorney can offer assistance and guidance during this important process.

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