If Your Child Has a Developmental Disability, Avoiding Guardianship Can Have Serious Medical Consequences

I can’t tell you if your child can handle managing his or her own medical care. Only you fully understand your child’s abilities and needs.

​I can only share with you the benefits of getting guardianship:

• ​You have full legal authority to participate in your child’s medical treatment — for life.
• It’s the only way to fully protect your child.
• You can build in a legally binding contingency plan in place in case you die.

The benefits you get by avoiding guardianship:

• ​Avoiding the court’s involvement in your life
• Avoiding the expense of getting it
• Preserving your child’s rights

And the serious risk if you don’t get guardianship:

• ​Your child will be on their own to make important medical decisions and to deal with doctors and insurance companies.
• You can only “participate” in your child’s healthcare, you cannot make any final decisions (which will be made by your child once he turns 18).
• Your child can revoke your authority to participate at any time.

Alternatives to Guardianship are a Like Using a Band-Aid for a Wound that Requires Sutures

​When it comes to healthcare, parents who forego guardianship for one of the alternatives are frequently caught off guard when they realize how flawed they are, and how the parent is left with virtually no legal authority to continue to help their child.

​The strategies parents attempt to use in lieu of guardianship to continue to manage their child’s medical treatment do not adequately protect the child. The consequences of choosing these alternatives — like your child not getting the medical treatment he needs — can be serious.

It’s a Matter of Capacity

Parents who don’t get guardianship rely on 3 alternatives: signed healthcare proxies, statutory medical proxies and prior relationships with physicians.

Healthcare proxies signed by persons with developmental disabilities are often void on their face.

​Signed health care proxies don’t work because the person signing it (your child) must have the capacity to understand the full nature of what they are entering into in the first place, and they only apply once the person giving the proxy becomes incapacitated.

In the case of a child with a developmental disability, if you are claiming that they do not have capacity because of the disability, then logically, they do not have the capacity to sign the proxy in the first place and making it void on its face.

Statutory medical care proxies can result in uncertain outcomes.

​Unlike guardianship, where you always have the right to make healthcare decision for your child, with a statutory medical proxy, each doctor will make their own determination as to whether your child has capacity.

​If the doctor decides that your child has capacity, then you can be precluded from participating in healthcare decisions, and your child will be left to fend for himself.

Relying on past relationships is dangerous.

Some parents do nothing. They have a team of medical providers who have been working with the family, sometimes for years. While they may allow you to participate in your child’s medical care once he turns 18, they technically should not.

​If your child has to find a new doctor, for any reason (you move, you need a specialist, your doctors retire), then your child will be required to manage their healthcare on their own.

Either your child has the full capacity to manage their healthcare, or they do not.

My advice to you as an attorney, and as a parent of a child with a developmental disability is this:

​Either your child has the full capacity to manage their healthcare, or they do not.

Because of the strict regulatory environment, when it comes to healthcare, there is no in-between solution.

​Either you are comfortable that your child can fully manage their own healthcare for the remainder of their life, or you need to get guardianship – even if it is limited to healthcare related decisions.

As a parent, when it comes to medical treatment that can mean the difference between life and death, the risk are too great to choose any other way.