While your child with special needs is under eighteen, there is no question that you, the parent, are the decision maker. Upon attaining the age of eighteen, your child becomes an adult in the eyes of the law and is presumed to be able to handle their own affairs. This presents a problem for parents of children with special needs. Once your child attains eighteen, you are no longer legally eligible to make decisions for your now adult child.
For some parents, this may not be a critical issue as your child functions at a high level and doctors and hospitals are willing to work around the issue. The child may have the legal capacity to sign a power of attorney and name you as their agent. You should consult an attorney as to whether your child is legally able to avoid conservatorship by using a power of attorney.
Even if your child is able to proceed by naming you on a power of attorney, there are benefits to establishing a conservatorship. In particular, a power of attorney does not remove your child’s authority to make decisions–including financial decisions. A conservatorship can help protect your child from being taken advantage of or being financially manipulated. For instance, without a conservatorship your adult child technically has the authority to obtain credit.
For children with more challenging disabilities, turning eighteen presents an immediate problem. If your now adult child cannot make their own decisions, you can’t either unless you become your child’s conservator.
A Conservatorship is a public proceeding where you request control over your child’s financial affairs, personal affairs, or both. Conservatorships are filed in the Probate Court in Shelby County and in the Chancery Court in most other Tennessee counties and in Mississippi. In some states such as Arkansas, it is known as an Adult Guardianship. In short, a Conservatorship proceeding is a lawsuit where you are seeking to remove your child’s power to control finances and/or make medical and personal decisions and asking the court to grant them to you (or another third party). In this event, assuming that the court grant’s full Conservatorship, your child’s rights are removed and you are authorized to make personal and financial decisions related to your child’s property (if any).
In most conservatorships for young adults with disabilities, the child has no property to speak of and the person seeking conservatorship is the child’s parent(s). This scenario is typically easy to proceed with as everyone is in agreement. While you will need an attorney, the Courts are very understanding and accommodating with this circumstance. From experience, I can tell you that the Probate Court Judges in Shelby County and the Chancellors in Fayette and Tipton are very accommodating for this circumstance.
If the petition for conservatorship is filed by a person other than the parent, then the process is more complicated. However, if the family is on the same page and if the child is also not opposed to the petition the process is still usually pretty straight forward. If family is not in agreement or if the child wishes to oppose the petition, even if disability is clear, then the process can become convoluted.
A conservatorship cannot be established prior to the child turning eighteen, but it may be possible to have the conservatorship hearing on the child’s birthday or anytime thereafter if the process is initiated prior to the child’s birthday.
In order for the parent to initiate the conservatorship process, the parent should contact an attorney that practices in conservatorships and will need to obtain:
- An affidavit of the child’s treating pediatrician who has examined the child very recently—preferably within the last forty-five (45) days. The child must have been examined within the ninety (90) days prior to the filing of the petition.
- A copy of the most recent medical report.
- Court costs $213.50 or an affidavit of indigency
If you are unable to afford an attorney, you may be eligible for free legal assistance from Memphis Area Legal Services (www.malsi.org or 523-8822) or from the Community Legal Center (clcmemphis.org or 543-3395). For Tennessee Counties outside of the Greater Memphis Area or for more information about legal assistance, visit http://justiceforalltn.com/. For information about free legal services in Mississippi https://www.mslegalservices.org/ and http://nmrls.com/. For information about free legal assistance in Arkansas visit http://www.arlegalservices.org/.
Rob Malin, Esq.