DECISIONS FOR SERVERELY DISABLED ADULT CHILDREN

Raising a child with severe disabilities - disabilities that render the child unable to make decisions for his/herself - is very challenging.

 

A inevitable problem arises when the child becomes old enough to legally make their own decisions, but lack the ability to make these decisions.  A child has most of the rights of an adult at sixteen (16) years of age.  The law sees the person as an adult, regardless of how dependent they are.

 

A parent may have formal decision-making responsibility (even a parenting order) of the "child".  But this order cannot override an adult's rights.  Decision-making responsibility and parenting time means little at sixteen and almost nothing at eighteen.  The legal system takes the rights of a person very seriously and there are strict rules about removing those rights.  Giving someone else a person's rights to make personal decision can be equivalent to imprisoning them.  Sometimes this is necessary, but you must prove there is no other reasonable option to safeguard an disabled adult.

 

There is a difference between making wise or mature decisions (many eighteen year olds may not be capable of this) and not being able to understand the decisions to be made or to rationally consider them.  Often, it can be about the degree of intellectual limitation or mental illness and the possible risks.  

 

Personal decisions can include where the person lives, what work they do, whether they go to school, who they spend time with, what medical care they go for, etc.

 

There are various measures in place to allow a parent to make decisions for an adult (as a next-of-kin).  You may be able to decide about medical care or manage government financial support without much paperwork.  But there are limits. 

 

The problem arises in making personal decisions, where the child is resistant to their parents' authority and may make bad, even dangerous decisions. 

 

Also, the problem exists if the other parent (or another next-of-kin) wants to make decisions that you oppose.  A custody dispute regarding a child can can become a guardian dispute regarding an adult child.  Regrettably, there are cases where a parent ordered to pay child support (and this obligation can go on for the life of a disable child) tries to convince the child to move out of the recipient's home so that child support will end.

If the child (after turning eighteen years of age) sometimes has capacity, they may be able to appoint someone as their attorney for making decisions through a Power of Attorney (Personal Care) / (Property), by signing when they have capacity .  But, in most cases, this is likely not possible.

 

Otherwise, to have the authority to make decisions regarding your child's person , you will need to be Appointed as the Guardian of Person/Property.  This is an entirely different proceeding than a family law case and may require going to a different level of court than you have for the family dispute.  It is a lot of work to do.

 

If the child has income (other than government support) or any significant property, you may need the authority to make property (financial) decisions.  If your child was awarded damages for an injury, someone will have to make decisions about this money.  There are a number of options in this case.