Guardianship of a Child with Special Needs

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In the State of New York children are considered adults when they reach the age of 18. All children are considered legally competent and capable of making decisions for themselves independently at 18 years of age. However, if you have a child with special needs you may be aware your child’s disability may never allow him or her to be a legally competent adult. In the State of New York no matter how severe your child’s disability is, you will need to take legal action to have a guardian appointed for your child after they turn 18. In addition to parents appointing themselves as guardians of their children, it is also recommended they appoint successor guardians in the event of the parents’ disability or death. Successor guardians are an important component of the guardianship process because children generally outlive their parents.

Guardianship Proceedings in New York Surrogate’s Court

In the State of New York guardianship proceedings for children who turn 18 are usually brought in the Surrogate’s Courts. The procedure is pursuant to New York Surrogate’s Court Procedure Act 17-A. The parents must produce documentation of the disability of their child. This can be done by submitting affidavits from the child’s physicians. The application to the court must also explain to the court the child would not be in a position to manage his or her own affairs. After the application is brought to the court, the court appoints an attorney to the represent the child. This attorney will usually investigate the child’s circumstances and ascertain the truthfulness contained in the parents’ petition. The guardianship proceeding should be part of the planning for the child’s long term care. The guardianship application should be brought long before the child turns 18 years of age. Guardianships are not simple proceedings. It is highly recommended that you retain a guardianship law firm familiar with the needs of special needs children to represent you in these proceedings.