You have a child with special needs, and up until this point you have focused your efforts on the present. You have consistently made sure that your child has everything he or she needs, and you have done what was necessary to ensure that your family has had the financial resources required to adequately provide for your child. But, your child is now quickly approaching age 18, and you are beginning to wonder: What happens next?
This is a very important question. In Florida, a child legally becomes an adult when he or she reaches the age of 18. This is known as “emancipation,” and emancipation simultaneously confers a number of key rights upon the child while also terminating certain corresponding rights that previously belonged to his or her parents. As your child’s parent, you still have every right to continue to support him or her financially and advocate on his or her behalf. However, you will lose rights such as:
In many cases, doctors, educators, and government officials will find that their hands are tied because parents are no longer able to make decisions and provide authorizations on their child’s behalf beyond age 18. This can be challenging for everyone involved, and it can potentially lead to significant negative consequences for children and their parents.
Becoming Your Child’s Guardian in Florida
While there are a few potential ways to address these concerns, the primary means of doing so in Florida is by establishing guardianship. Once your special needs child turns 18, becoming his or her “guardian” allows you to continue to meet his or her needs, the fact that he or she is now legally an adult notwithstanding. Becoming your child’s guardian does not in any way alter your fundamental relationship as your child’s parent. Rather, it simply grants you rights that you would not otherwise have once your child reaches adulthood.
There are several different types of guardianships in Florida, each of which makes the most sense under different circumstances. For example, if your child will need continuing assistance in virtually all aspects of his or her life, then it may make sense for you to become his or her “full plenary guardian.” This requires a legal determination that your child is incapacitated. However, it preserves all of the rights you held as a parent prior to your child’s eighteenth birthday. Florida parents can also petition to become “guardian advocates,” which grants limited authority to assist with medical and financial decision-making for an adult child who is affected by a developmental disability. Alternatively, if your child is legally capable of doing so, he or she can petition the court for a voluntary guardianship or a pre-need guardianship once he or she reaches age 18.
Although the Florida courts recognize the importance of protecting children and adults with special needs, they also recognize the importance of preserving individuals’ sovereignty and independence. As a result, the process of becoming a guardian – even for your own child – is not as simple as filling out and submitting a couple of forms. You will need to work with an attorney to determine which option makes the most sense for your family, and then you and your attorney will need to work together to file an appropriate petition at the appropriate time.
Co-Guardianship for Married and Unmarried Parents
While, thus far, we have been talking about one parent serving as his or her adult child’s guardian, as a practical matter, many situations will involve two parents who wish to become their child’s co-guardians. In Florida, both married and unmarried parents can become co-guardians of adult children who are affected by disabilities – although situations involving unmarried parents will often present certain additional challenges. For example, in situations involving children with special needs, it is possible for the obligation to pay child support to extend past the child’s 18th birthday. As a result, it is important for divorced parents to consult with a family law attorney prior to their child turning 18 years of age.
As the parent of a minor child with special needs, if you and your spouse or partner (or former spouse or partner) reach a disagreement, it is largely up to you to work things out. While this is still the case when you are a co-guardian to an extent, guardianship confers certain additional legal responsibilities and the Florida courts.have a vested interest in ensuring that the guardianships they create serve their intended purpose effectively. Ultimately, co-guardians must meet their legal obligations while also protecting their children’s best interests. And if they are unable to come to terms and their guardianship order does not specify a resolution, then they may need to ask the court to intervene.
Before getting to this stage, however, there are various intermediate steps and tools that co-guardians can utilize. These include pursuing mediation and negotiating with the help of their respective attorneys. As a practical matter, requests for court involvement tend to be reserved for relatively-extreme circumstances in which one or both parents believe that legal action is necessary in order to protect the best interests of their child.
Beginning the Process of Establishing Guardianship for an Adult Child with Special Needs
In order to ensure that there are no gaps in your child’s care or your family’s access to educational or financial programs, it is important to begin the process of establishing guardianship before your child turns 18. This is the case even if you ultimately decide that your child should petition for a voluntary guardianship or pre-need guardianship after his or her eighteenth birthday. You should speak with a lawyer who has experience helping parents of children with special needs, and who can help you thoughtfully consider all of the options you have available. There may be other factors to consider beyond establishing guardianship as well. Here too, an experienced attorney should be able to walk you through everything you need to know.
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