Legal Guardianship for Young Adults with Disabilities

During the first 17 years of your child’s life, you are probably managing a lot for them: money, finances, school, doctor’s visits, therapists, caregivers, transportation, housing, and even shopping for groceries. When your child is 17 years old and younger, you automatically have the legal right to make all major decisions for them. But, once a child turns 18 years old, the law gives them the right to make these decisions for themselves.

Maybe your child won’t be ready to manage these things right when they turn 18. Maybe they never will.

There are many options for you to support your child. Tools like supported decision-making agreements, powers of attorney, and informal supports are often enough to help families of children with disabilities or special health care needs. We talk about these in greater detail on our Legal Options for Age 18 and Beyond and Legal Help for People with Disabilities pages. It is important that you read that page before reading this one.

After you’ve looked through all the different supports and services, if you believe that it’s in your child’s best interest for you or someone else to have legal control of some or all of their decisions, you can ask the court to give you legal guardianship of your child.

Read on for an outline of the legal process of petitioning (asking) for guardianship.

What is Guardianship?

Guardianship of the person is when a court gives a responsible person (the guardian) full or partial decision-making power (authority) for an adult (the ward) so that the guardian can protect and look after them. The court must say that the adult is “incapacitated” (a legal term to say your child is not able to manage certain areas of their life) in order to set up a guardianship. This is not a term to take to heart; it doesn’t describe everything about your child, only some of their abilities.

If your child does need a guardian, the guardianship should be designed to help them build and keep as much independence and self-determination as they are able to have. The guardianship will cover only some areas of your child’s life clearly defined by the court. It could cover money, medical decisions, housing, voting, and if your child needs permission to get married.

Courts take granting guardianship seriously because a guardianship would take away your child’s legal rights. Before granting a guardianship, a court must see:

• If you have already looked into other support options – called alternatives to guardianship -- and if they would give your child enough protection. Read more about these on our Legal Options for Age 18 and Beyond.
• Whether your child is fully or partly “incapacitated.”
• Who your child wants to have as their guardian.
• If it is in your child’s best interest to have a guardian.

The Legal Process

These are the basic steps involved in applying for guardianship.

• Guardianship law is complicated. A lawyer who has experience with guardianship can help you understand the rules and process. This might be a family or probate lawyer who has worked with other people with disabilities. To find a guardianship lawyer, you can find and connect with other parents who have been through this process. You can also search for a lawyer online on the State Bar of Texas (in English) website. Then, before you decide to work with a lawyer, ask them how many times they have gone through the guardianship process and get a written quote on how much it will cost.
• Your lawyer will give you a form for your doctor to fill out, which describes areas where your child needs supervision. This could include things like: if they can dress or feed themselves; if they can make decisions about money; and if they are capable of driving.
• You might also be asked to show that you have looked into less formal supports, like using a joint-decision making agreement or becoming a representative payee. You can learn more about these on our Legal Help for People with Disabilities page.
• You and your lawyer will take this information to court to file your request (called a petition) for guardianship.
• After your lawyer files your petition with the court, the judge will assign an attorney ad litem. The ad litem is a lawyer whose job is to represent your child in the guardianship process and advocate for their wishes. Part of the ad litem’s job is to investigate whether a guardianship is needed or if other supports and services would work for your child. They will talk to your child to talk about guardianship law, why you are asking for guardianship, and what your child wants. The ad litem might also review the medical report and talk to your child’s school, caregivers, and other family members.
• Finally, the ad litem will write a report with their opinion on if your child needs or wants a guardian. Once your child’s attorney ad litem files that report with the court, the judge will decide whether to issue guardianship. If the judge grants guardianship, they will consider your child’s wishes on who the guardian should be.
• After the judge decides on guardianship, the court will give the guardian a letter of guardianship, which can be used with schools, banks, health insurance, doctors, or anywhere else it may be needed.

Costs and Timeframes

You can petition for guardianship of your child anytime after they turn 18 years old, but it might take many months to gather all the paperwork. So, if you think there are good reasons that your child needs guardianship starting on their 18th birthday, it’s a good idea to start working on this much earlier.

Once you file your completed paperwork, it usually takes about 30 days for the court to decide if they will grant guardianship.

Lawyer and court costs are generally $2,000 to $5,000, depending on where you live in Texas and how hard it is to get the guardianship completed. Some areas of the state may have nonprofits that help with guardianship applications at a reduced cost. The State Bar of Texas has lawyer recommendations – you can call or reach them online.

It’s important to always know exactly how much money and assets your child has once guardianship is granted. (An asset could be a house, a car, or other things that are valuable). If your child has more than $2,000 in money and assets that are not kept in a trust, they could lose some of their federal and state benefits. A special needs trust is a good way to keep things simple.

Once Guardianship is Granted

Once a court has granted guardianship, there are a few things to know:

• The court will set a schedule to review your adult child’s guardianship. If your child shows new capabilities or shows that they need extra protection and support, you can ask the court to change the guardianship at that time. To do this, you will probably need to work with a lawyer and a doctor.
• You will need to renew the guardianship every year by filing a report with the court. In most cases, you won’t need an attorney or a doctor to do this. It’s very important to know that if you don’t file this report every year, the court could name another guardian for your child.
• The court may require you to pay a guardianship bond (or fee) every year. They decide the amount of this fee when making the guardianship decision.