Consider a common situation: Mom and Dad care for their severely disabled child, who is quickly approaching 18 years of age. Let’s call this hypothetical soon-to-be adult Jane. Jane has suffered from severe autism her whole life. She has been in special education throughout her entire school career and requires specialized and frequent medical care.  Jane will never be able to live on her own or manage her finances. Jane’s parents will care for her indefinitely. Jane’s parents wonder if they need legal assistance to plan for Jane’s transition to adulthood.

Without proper planning, Jane’s parents will face great difficulty once Jane becomes an adult.   They will face difficulty communicating with Jane’s doctors, banks, and other financial institutions. This legal limbo poses serious practical problems for parents who are the sole caregivers of their disabled adult children.

Under Virginia law (which is similar to the law in other states), a parent is the natural guardian of a child until that child turns 18 years old. However, when Jane turns 18, she, disabled or not, is considered a legal adult under Virginia law. At that point, Jane’s parents have vastly less authority over Jane’s medical care and finances.

Jane’s parents may also believe that they can avoid this legal limbo if Jane executes a power of attorney. In Virginia, a person may execute a power of attorney appointing another person to act on his or her behalf. However, among other requirements, the maker of a power of attorney must be at least 18 years of age and possess legal capacity. By definition, disabled children are not yet 18 years old. In addition, many disabled adults will probably lack adequate capacity to execute a power of attorney.

Practically speaking, what are Jane’s parents to do? Due to her severe disability, Jane likely does not possess adequate capacity to execute a power of attorney. Jane’s parents’ best course of action would be to obtain guardianship and/or conservatorship over her.

Virginia Guardianship Basics

To obtain guardianship/conservatorship over a person, Virginia law generally requires:

  1. the parent to file a petition with the local circuit court;
  2. the parent to plead and prove certain facts, as set forth in the applicable statute;
  3. the parent to provide proper notice to certain relatives of the disabled adult,
  4. the Court to appoint a guardian ad litem to investigate and represent the interests of the disabled adult;
  5. the parent to obtain a doctor’s report and file the same with the Court, and
  6. the Court to hold a hearing to determine if the appointment is proper.

While guardianship/conservatorship proceedings may be instituted against an adult, Virginia law also permits the commencement of such proceedings when a child is seventeen years and six months old. This avenue provides a practical course of action for parents seeking a stress-free transition for their soon-to-be adult child.

Guardianships and conservatorships range in scope. In the final order, the Court will set forth the scope of each appointment. Generally, a conservator manages the estate of the disabled adult. This means supervising and operating bank accounts, negotiating checks and other instruments, making or taking out loans, entering into contracts, paying bills, and managing the estate of the disabled adult. The guardian manages the disabled adult’s care, including determining residency, day-to-day care, and medical treatment. A guardian also has the authority to communicate directly with the disabled adult’s medical providers.

These appointments are not to be taken lightly. Both the guardian and conservator have tremendous power over the care and property of the disabled adult child. Consequently, they owe legal duties towards the disabled adult. In addition, the conservator must file accountings with the local Commissioner of Accounts, documenting the management of the disabled adult’s estate. The guardian must file annual reports with the local Department of Social Services regarding the disabled adult’s care.

If you are the parent of a disabled child approaching adulthood, it is critical to speak to an attorney experienced in guardianship/conservatorship law as soon as possible. An experienced attorney can help you through this rather complicated and technical process.