Planning for Life

Your Must-Have Checklist if You Need Guardianship When Your Child with Special Needs Turns 18

Posted by Rebecca J Benson on January 30, 2018

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By Rebecca J. Benson

Every child automatically becomes an “adult” in the eyes of the law as soon as the child turns 18 – an unnerving thought for many parents.  Parents of a special needs child need to consider whether their child will need a legal guardian, even after turning 18.  Our comprehensive “how-to” checklist will help you determine whether guardianship is needed and outline the steps for obtaining the necessary Massachusetts court appointment:

  • Determine whether any alternatives are available (i.e., does your child have the capacity to sign a health care proxy and durable power of attorney?)
  • Check Probate Court website for forms updates and pro se materials. http://www.mass.gov/courts/forms/pfc/pfc-upc-forms-generic.html
  • If the child has a developmental disability, the Court requires a Clinical Team Report (CTR) completed by a physician, a psychologist and a social worker. Otherwise the Court requires a Medical Certificate (MC) completed by a physician, psychologist, a certified psychiatric nurse specialist or a nurse practitioner.
  • Note deadline for filing petition (i.e., within 30 days of medical exam for MC or within 180 days of exams for CTR).
  • If the child is being treated with antipsychotic medication, need a Rogers petition, with additional clinical documentation.
  • Complete and sign Petition, Bond, and Military Affidavit. Refer to MC or CTR for necessary clinical information.
  • Consider what limitations are appropriate for Guardianship (see Probate Court checklist).
  • Complete and sign CORI form for each proposed guardian.
  • Obtain assents, if appropriate.
  • File pleadings.
  • Obtain Citation from the Court (this usually takes several weeks). Check Citation for accuracy and calendar “return date.”
  • Arrange for in-hand service on your child by a disinterested person over the age of 18. Serve and publish notice as ordered in citation, and pay careful attention to deadlines(particularly the “return date”).
  • File Return of Service and obtain a hearing date from the Court. Give notice of hearing date to all parties.
  • Arrange for updated MC (i.e., based on an exam no more than thirty (30) days before the date of the hearing).
  • Prepare proposed Decree and Order, with proposed limitations (if any) on fiduciary’s authority. See checklist from Probate Court.
  • If appropriate, arrange for your child to attend the hearing.
  • Review Letters of Appointment. Note all reporting deadlines (usually 60 days from date of appointment and annually thereafter). Be sure to file all required reports.

As parents, we always put our children first and sometimes that means asking for help to ensure their best interests. Please consider working with an attorney:

  • If your child needs immediate medical care (i.e., there is an emergency and you need to be appointed immediately as temporary guardian).
  • If your child, your ex-spouse, or anyone else challenges the proposed appointment.
  • If your child is being treated with antipsychotic medications (Rogers cases). In these cases, additional documentation is required, and the Court will appoint counsel for the child.
  • And finally, if the child has substantial assets and needs help with management or needs to preserve eligibility for SSI and other public benefits.

For additional questions, please contact Rebecca J. Benson. You can download your checklist here.

Download Checklist

 

* These materials should not be considered as legal advice or opinion on any specific facts or circumstances, and are intended for general informational purposes only. A competent attorney should be consulted for legal advice about a client’s particular situation. These materials might constitute "advertising" under Rule 3:07 of the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law of the Massachusetts Supreme Judicial Court.

Topics: Special Needs Child, special needs planning, guardianship, proxy, disability

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