Last week we were discussing an issue which many parents are unaware of, the fact that they no longer have the legal right to make financial and medical decisions on their child’s behalf once he/she turns 18. A power of attorney and health care directive can be a good solution. But, they aren’t the perfect fit in all situations.
If my son decides to have a medical procedure that I don’t think is in his best interests can I prevent it? If he has no mental impairment then I cannot. Everyone has the right to make bad decisions. For me to have the right to make medical decisions for my child, I must seek a guardianship.
A guardianship is a legal proceeding in which a person must be declared incapacitated – lacking sufficient mental capacity to govern himself and manage his affairs – before a guardian can be appointed. I can be named as guardian of the person, the property or both. Being named both gives me the ability to make financial and medical decisions for my son.
My son must be examined by two doctors who must express their opinion in writing that he lacks the mental capacity to make financial and/or medical decisions. A court appointed attorney is assigned to represent him. That attorney will meet with him and speak with me before issuing a report to the court expressing an opinion as to the need for guardianship. My son will have the opportunity to attend the hearing and speak with the judge if he wishes.
In discussing the guardianship option with parents this sometimes is a real issue. “Can my child object to the guardianship and if so, will a judge refuse to order it?” Where the mental capacity is impaired to the point where the child does not understand the meaning of the guardianship and can’t really express an objection, the risk of failure is small. If everyone – doctors, court appointed attorney, and proposed guardian – supports the need for guardianship, then the judge will sign off on it.
If, on the other hand, my son understands the proceeding and fights against it, the decision to award guardianship becomes much harder for the court. As I always explain to clients, a physical injury such as a broken leg is easy to determine with certainty. The objective finding of an x-ray can’t be disputed. However, diagnosing mental illness often times is not so easy.
The trend in recent years has been to tailor the guardianship to meet the specific needs so that a limited guardianship can be awarded. Some rights would be kept by my son and others given to me as guardian. It, therefore, might be possible to give me the right to make medical decisions, but he could keep other rights such as the ability to determine where or with whom he can live.
But, what if my son is likely to resist guardianship and a judge then may refuse to grant it? Are there any other options? There is something called conservatorship and we will talk about that next week.