Recently, we have had several clients ask us about Guardianship for their special needs children and about when is the best time to begin the process. First, let’s talk about what a Guardianship is.
When a child is born, unless a Court orders otherwise, that child’s natural parents are his or her Guardian until the child turns 18. The child is born; the parents are listed on the birth certificate and are automatically given the legal role of “Guardian” until the child turns 18. That is why most parents can do things such as sign their child up for school, go to the doctor with their child, and access their child’s medical records without any type of legal documentation. Of course, that all changes when a child, regardless of special needs, turns 18. Why? Because at the age of 18, South Carolina law states that a child becomes an adult who can make their own decisions. But, when you have a special needs child, their capacity doesn’t magically change the day they turn 18. This means that, unfortunately, an incapacitated child who turns 18 is treated as any other adult until a “Guardianship” has been put into place.
That means that the parents often cannot do things like attend doctor’s appointments, agree to medical procedures, get access to educational records, etc. until a Court has legally appointed them Guardian of their adult child. A Guardianship is a legal proceeding with many filing and statutory requirements. If everything is filed correctly and approved by the Court at a hearing, the Probate judge will issue an order finding the incapacitated person incapable of managing his or her own affairs and naming a person or persons to serve as Guardian to make decisions for the incapacitated person. While this may seem ridiculous to many parents with special needs children, it is unfortunately the law. I tell clients often that I wish they didn’t have to go through this process to continue to do what they have always done, but the process is there to protect persons who are not as fortunate as their child is in having loving and caring parents.
A second question we often are asked is when to begin the Guardianship process. It used to be fairly routine for us to see families with special needs children who did not begin the Guardianship process until years after their child turned 18 because they did not have a practical need for a Guardianship. They had been going to same doctor for years who knew their family, and no one ever questioned the parents’ authority to make decisions, even though the parents did not legally have that authority under our law. However, in our litigious society, we are finding that clients are running into issues and need the Guardianship in place much sooner because now hospitals, schools, doctor’s offices, and other entities are scared of being sued for violating HIPPA or other privacy laws. The parents find that they suddenly cannot go to doctor’s appointments, or cannot apply for government benefits like SSI, or cannot continue to meet with administrators or teachers at the schools their children are attending because they do not have a Guardianship in place.
As such, we are generally recommending that clients begin the process about 2 months before their child turns 18. If you begin the process earlier than that, the Court will not be able to schedule a hearing until closer to the child's 18th birthday. If you wait much longer to begin the Guardianship process than about two months before the child’s 18th birthday, the hearing could be months after the person turns 18 and the parents might not be able to make decisions or get information about their child that they need.
If you know someone who has questions about the Guardianship process in South Carolina or has a special needs child who is getting close to 18, suggest they call us. I know we say this often, but our consultations are always free. We want to be a resource and tool for the special needs community, which is one of the reasons we focus on the special needs area of the law.