A recent article in the Effingham (IL) Daily News, “Teaching parents about guardianship of disabled children,” explains that in this transition period, parents need to decide whether their child needs a guardian, or if they need a power of attorney.
Once a child is age 18, the parent is no longer the child's legal guardian.
You should identify the support required for your child and ask what other support they need, while they’re transitioning. Work with a special needs attorney and ask about guardianship. Guardianship is a way to protect an individual who can’t take care of herself, make informed decisions or handle financial assets. An experienced attorney will explain guardianship and alternatives that may be chosen, if the child is capable of making some, but not all, decisions on her own. There are different kinds of guardianships and different kinds of powers of attorney (POA) for estate and health care requirements.
A person can be disabled in some ways, but still be competent to execute the powers of attorney. If the person understands who their family is, who she is, if she’s oriented to time, and she knows who they trust to handle their business or health care decisions, then she can probably sign powers of attorney.
A POA is written authorization to represent a person and make specific decisions on her behalf. The child may have a POA over her health care or estate management. A guardianship of the child’s health care or estate management is appointed by a judge, after reviewing physician statements about the disabled person's needs.
Remember that having power of attorney over their child's financial matters, doesn't give parents power over everything. Things not covered in the POA document are things over which the agent doesn't have the authority. A POA can be revoked, when the person assigning it is competent. However, in a guardianship appointed by the court, you have a duty to act, until the court determines otherwise.
A guardianship requires a physician's report which states that the alleged disabled person needs a guardian. The physician should state specific reasons for the court. Guardianship should be as narrowly designed as possible.
Reference: Effingham (IL) Daily News (April 15, 2018) “Teaching parents about guardianship of disabled children”