Guardianship and Powers of Attorney

Guest blog contributed by Kate Devine Schye, Associate Attorney, at Clancy & Associates, Ltd.

When your child with special needs turns 18, he or she legally becomes an adult who can make his or her binding decisions with resulting consequences. When legal adulthood approaches, parents worry that their child can’t make safe or sound decisions and/or is susceptible to fraud or undue influence. To protect and support their child, parents frequently pursue the action of becoming their child’s official legal guardian. How does a parent know whether a Guardianship or Powers of Attorney are appropriate for their child?

What are Powers of Attorney?

Powers of Attorney are legal documents used to give one individual the power to act on behalf of another individual. A Power of Attorney allows parents to make legal decisions for their adult child, including financial, educational, and medical decisions. However, Powers of Attorney do not terminate a person’s rights; in fact, a person under the Power of Attorney is still free to make his or her own decisions. For example, if your child signs a contract, it is binding under a Power of Attorney. If more protection is needed, a Guardianship may be more appropriate.

What is Guardianship?

Guardianship is a legal process by which a person is granted the responsibility and decision-making power for an adult who lacks capacity to make his or her own decisions. There are two basic types of guardianships, guardianship of the person and guardianship of the estate. A guardianship of the person involves the ongoing personal, healthcare, and day-to-day decision making for a person. A guardianship of the estate involves the care and management of a person’s finances and property.

A Guardianship does not have to be a one-size-fits- all approach. Specifically, a Guardianship can encompass all aspects of decision-making for a person or can be strictly limited to certain decisions. In a plenary guardianship, the guardian is given full decision-making authority on behalf of the person in all areas, including making all financial, educational, and medical decisions. Conversely, in a limited guardianship, the guardian is given the power to make only those decisions which the court specifies. With a limited guardianship, a court does not make a general finding that the person lacks all decision-making capacity, but rather determines the limits of that person’s capacity based upon the specific facts and circumstances. For example, your child may be able to make his or her own medical decisions, but may need a limited guardian to have decision-making authority over certain financial matters.

Guardianship Considerations: How do I know if a Guardianship or Powers of Attorney is right for my child?

  1. Does my child have the intellectual capacity to read and understand the content of a Power of Attorney? If not, a guardianship may be necessary.
  2. Can my child manage his or her own money with relative accuracy?
  3. Is my child susceptible to fraud or undue influence?
  4. Can my child carry out treatment plans, attend medical appointments, therapy appointments, and administer medications?
  5. Does my child understand the choices that they have and the consequences of each choice?
  6. What type of support does my child need on a day-to-day basis?
  7. Can my child discern whether others have his or her best interests at heart?
  8. Is my child able to understand emergency situations?
  9. Can my child count change accurately?
  10. Does my child make impulsive choices that have undesirable consequences?

About Kate Devine Schye

Prior to joining Clancy & Associates, Kate Devine Schye practiced for 12 years in family law. Kate’s work in family law and her experience as a parent of a child with special needs prepared her for compassionate and personalized advocacy for families. Kate lives in Glen Ellyn with her husband and three young kids. She loves spending time outdoors, taking bike rides with her family, and watching her kids participate in various activities throughout the year.

About Clancy & Associates, Ltd.

Clancy & Associates, Ltd., is Illinois’s only full-service special needs planning law firm dedicated to supporting individuals with special needs and their families. Clancy & Associates assists with Special Needs Trusts, Estate Planning, Guardianship, Transition Planning, Benefits Assessments, IEP Reviews, and more.

C.I.T.Y. of Support is grateful to Kate Devine Schye, Associate Attorney, at Clancy & Associates, Ltd. for their participation as one of our organization's sponsors. Please note that the information and opinions presented here are specifically their own.  The purpose of C.I.T.Y. of Support's collaborative blog is to help connect families and professionals to different community resources, and we do not specifically endorse any particular recommendations provided herein.