Guardianship And Conservatorship For Special Needs Children: Ensuring Long-Term Care and Protection After Divorce

MLF Team

Guardianship And Conservatorship For Special Needs Children: Ensuring Long-Term Care and Protection After Divorce


Divorce typically involves many complications, especially for couples with children. Divorcing when you have a child with special needs adds another layer of complexity to the process, as the couple needs to consider a variety of unique medical and legal matters during the process, including guardianship and conservatorship. If you are preparing for a divorce and have special needs children, you may have questions about how to approach the process and how to take your child’s needs into account. A dedicated Georgia family law attorney can provide legal guidance on a variety of family law matters, including divorcing as a parent of a special needs child. You can learn more about how to handle your divorce and your child’s needs by calling the Millard Law Firm today at (678) 319-9500.


What Is Guardianship for Special Needs Children?


When parents of a child with certain special needs decide to get a divorce, they need to make a plan for what will happen when the child turns 18 years old. The child is legally considered an adult at this age, but many special needs children are not capable of making their own financial and medical decisions. In such cases, the child’s parents should consider establishing a guardianship. This process involves one or both parents applying to be the child’s legal guardians, which allows them to make decisions on behalf of their adult child with special needs.


What Are the Disadvantages of a Guardianship?


According to the Georgia Council on Developmental Disabilities (GCDD), people with disabilities deserve to live in the least restrictive and most inclusive environment that suits their needs. The GCDD also believes that full legal guardianship is the most restrictive option for providing these individuals with the care they need.


Applying for legal guardianship in Georgia is expensive and requires navigating an extensive process through the probate courts, along with petitioning the court to rule that the special needs adult is incapable of making their own decisions. Additionally, guardianship takes away many of the special needs individual’s rights, such as the right to make their own decisions on housing, medical care, marriage, and divorce.


What Is a Conservatorship for People With Special Needs?


In cases where a special needs individual owns property but lacks the capacity to manage it effectively, a conservatorship may be a good option. Under Georgia law, a conservator can be appointed for an adult if the court determines that the individual is unable to make or communicate responsible decisions regarding their property. Additionally, the law stipulates that a conservatorship should aim to foster the maximum degree of self-reliance and independence possible, and should only be implemented when less restrictive alternatives – such as a trust or power of attorney – are either not available or not suitable.


The process for establishing a conservatorship involves filing a petition in the county where the special needs individual lives. Section 29-5-10 of the Georgia Code outlines specific requirements for this petition, including a mandate that the petition is attested to by at least two people, or alternatively, supported by a medical professional’s affidavit confirming the individual’s lack of capacity.


Choosing Between Conservatorship and Guardianship


A conservatorship may be pursued either independently or alongside guardianship, and the roles of guardian and conservator may be held by different people. The issue of conservatorship should be approached with due diligence, as the process can be complex and expensive. In addition, dissolving a conservatorship requires an equally rigorous legal process. You can learn more about whether a conservatorship or guardianship is appropriate for your special needs children by contacting the Millard Law Firm’s experienced Georgia family law attorneys.


Alternatives to Guardianship and Conservatorship for Special Needs Children


Guardianship and conservatorship may be a good option for some parents of children with disabilities, but parents should also consider other options. The most important thing is to choose an arrangement that meets the needs of the child and allows them to live a comfortable life with as few restrictions as possible.


Power of Attorney


Power of attorney is a legal framework that allows an individual to delegate authority over financial or medical affairs to a third party, often referred to as an “agent.” This delegation does not strip the individual of any rights and does not apply to the management of Social Security or veterans’ benefits. Power of attorney is generally implicit for parents over their minor children, whether or not they have special needs. However, this authority is automatically revoked when the child reaches the age of 18, unless formal guardianship has been established.


The scope of the power of attorney can be either broad or narrow, based on the mutual agreement between the parties involved. The specific actions and limitations must be carefully delineated in writing. While not legally required, it may be a good idea to seek assistance from an attorney for this complex process.


Trusts and Estates


In Georgia, personal representatives can be appointed to manage estates or trusts, especially when assets are left to someone with disabilities. If no qualified executor is available, a probate court will appoint an administrator. While similar to power of attorney, this role is specific to overseeing inherited assets.


For complex estates, individuals may wish to consult with an attorney. Executors are legally required to take an oath of office and must adhere to state regulations for proper estate management. This often includes meeting specific legal criteria, such as securing court approval for selling real estate assets.


Contact Our Georgia Family Law Attorneys Today


Navigating the intricacies of divorce is challenging enough, and when special needs children are involved, the complexities multiply. Decisions around guardianship and conservatorship become critical, and often involve complicated legal and medical considerations. Georgia law offers several routes for addressing these concerns, each with its own benefits and drawbacks. Divorcing couples should consider seeking specialized legal advice to determine which route best suits the needs of their children and ensure that they receive adequate long-term care and protection. At the Millard Law Firm, experienced Georgia family law attorneys stand ready to guide you through these nuanced processes, always keeping the best interests of your special needs child at the forefront. To further explore your options, reach out today at (678) 319-9500.