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.
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:
Whether your child is fully or partly “incapacitated.”
These are the basic steps involved in applying for guardianship.
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 a court has granted guardianship, there are a few things to know: