Legal Guardianship for Young Adults with Disabilities

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Jump to topics on this page:

• What is Guardianship?
• The Legal Process
• Once Guardianship is Granted
• Suggested Links
   

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During the first 17 years of your child’s life, you are probably managing a lot for them: finances, school, doctor visits, therapists, caregivers, transportation, housing and even grocery shopping. Before children turn 18, you automatically have the legal right to make all their major decisions. After that, they can legally make these decisions for themselves.

Maybe your child won’t be ready to manage major life decisions right at age 18. Maybe they never will.

There are many options for you to support your child after they turn 18. 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 more detail on our Legal Options for Age 18 and Beyond and Legal Help for People with Disabilities pages. It’s important to read those pages before reading the rest of this one.

If you believe it’s in your child’s best interest for you or someone else to have legal control of some or all their adult decisions, you can ask the court for legal guardianship.

What is Guardianship?

Guardianship is when a court gives a responsible person (the guardian) full or partial decision-making power for an adult (the ward). The guardian can protect and look after them. The court must say the adult is “incapacitated” — a legal term that means 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. “Incapacitated” doesn’t describe everything about your child, only some abilities.

Guardianships should be designed to help wards build and keep as much independence and self-determination as possible. If you apply and are approved for a guardianship, it will only cover some areas of your child’s life. The court clearly defines this. It could cover money, medical decisions, housing, voting or if your child needs permission to get married.

Courts take granting guardianship seriously because it takes away some of a person’s legal rights. Before granting a guardianship, a court must see:

• That you’ve already looked into other support options (alternatives to guardianship).
• If your child is fully or partly “incapacitated.”
• Who your child wants to have as his or her guardian.
• If it’s in your child’s best interest to have a guardian.

The Legal Process

There are several basic steps in applying for guardianship:

• Hire a licensed lawyer. Guardianship law is complicated, but an experienced lawyer can help you understand the rules and processes. To find a guardianship lawyer, you can connect with other parents who have been through this process or search online through the State Bar of Texas. Ask about the lawyer’s experience with the guardianship process and get a written quote on how much services will cost.
• Complete forms. Your lawyer will give you a form for your doctor to fill out, which describes areas of life where your child needs supervision. Questions could include your child can dress or make meals independently, if he or she can make money decisions, or if he or she is capable of driving.
• Consider alternatives. 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.
• File a petition. You and your lawyer will take the forms and information to court to file your request (petition) for guardianship.
• Get assigned an attorney ad litem. After your lawyer files your petition with the court, the judge will assign an attorney ad litem for your child. The job of an attorney ad litem is to represent and speak up for your child and their wishes. Part of that job is to investigate if a guardianship is needed, or if other services or supports could work for your child. The attorney ad litem: 
  • Talks to your child about legal options, why you are asking for guardianship and what your child wants. 
  • May review the medical report and talk to your child’s school, caregivers and other family members. 
  • Writes a report with an opinion on whether your child needs or wants a guardian. 
• Receive the guardianship decision. Once the attorney ad litem’s report is filed with the court, the judge reviews all information and decides whether to issue guardianship. If the judge grants guardianship, he or she will consider your child’s wishes on who the guardian should be.
• Review the letter of guardianship. If the judge decides on guardianship, the court will give the guardian a letter of guardianship. This letter can be used with schools, banks, health insurance, doctors or anywhere else it may be needed.

Costs and Timeframe

You can petition for guardianship any time after a child turns 18, but it might take months to gather all the paperwork. So, if you think there are good reasons your child needs guardianship starting on their 18th birthday, start working on this much earlier.

Once you complete and file your paperwork, it usually takes about 30 days for the court to decide on guardianship.

Lawyer and court costs are generally $2,000 to $5,000, depending on where you live in Texas and how complex the process is for your family. Some areas of the state may have nonprofits that offer lower-cost help with guardianship applications. You could also explore buying a legal plan to help with costs, such as from Texas Legal. 

The State Bar of Texas has recommended lawyers you can call or reach 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 valuables.) If your child has more than $2,000 in money and assets not kept in a trust, they could lose certain federal and state benefits. A special needs trust could help manage your child’s assets and prevent them from losing benefits. 

Once Guardianship is Granted

• Scheduled reviews. The court will set a schedule to review your child’s guardianship. If your child shows new capabilities or needs extra protection and support, you can ask the court to change the guardianship. To do this, you may need to work with a lawyer or doctor.
• Annual renewal. 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. If you don’t file this report each year, the court could name another guardian for your child.
• Possible fees. 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.