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February 17, 2021
by Lindsey Casey Franklin

​In Georgia, a child becomes a legal adult when he or she turns 18. At that time, your child will be legally able to make decisions on their own behalf, including such things as signing a lease agreement, entering into contracts, and exercising other such legal rights. For parents of children with special needs, this milestone presents a moment at which the parents must decide whether their child is capable of caring for his or her own needs. Depending on the severity of a child’s special needs and other factors, parents may decide to petition the court for guardianship and/or conservatorship to retain the ability to make decisions about their child’s healthcare, housing, food, clothing, and financial matters.

​A guardian can be appointed to oversee a person’s health and physical welfare in Georgia, while a conservator is charged with overseeing their financial affairs. Often a petitioner will request to be appointed as guardian and conservator of a child at the same time, and for purposes of this article the term “guardianship” will be used to embrace both concepts.

What factors should I consider when determining whether guardianship is appropriate for my child?

In Georgia, judges of the Probate Courts are vested with authority to determine whether it is in the best interest of a child to grant a petitioner’s request for guardianship over that child. If a court grants a petition for guardianship and/or conservatorship, your child will no longer be able to make decisions about their personal life, healthcare, financial, or legal matters. Because guardianships take away rights from your child, guardianship is not always the best option for every child. Your decision on whether to petition for guardianship should be based on the severity of your child’s specific needs and your appraisal of his or her ability to make decisions for themselves.

The following factors should be considered when deciding whether your child needs a guardian or other support:

• Your child’s ability to communicate his or her needs;
• Your child’s medical needs and the ongoing need for you to be involved in your child’s medical care and medical decisions;
• Your child’s ability to make financial decisions and the need for continued supervision over your child’s financial affairs;
• Your child’s level of independence when faced with daily self-care tasks such as feeding, dressing, and hygiene;
• Whether your child will require special outside support such as assisted living care or at-home health care; and
• Your child’s ability to make general decisions and understand the effect and potential consequences of decisions and actions.

When should I start the guardianship process?​

If all or some of the preceding factors apply to your child, guardianship may be necessary to safeguard care for your child. Note that although you have been the guardian of and cared for your child up until his or her 18th birthday, legal guardianship of your special needs child is not automatically extended once your child reaches the legal age of adulthood, and you will need to actively petition the court to retain guardianship.

Obtaining guardianship can be a lengthy and involved legal process. Therefore, to help avoid a gap in care when your child reaches the age of legal adult status, the decision to pursue a guardianship should occur before then. Reaching this decision may involve difficult conversations that depend on the abilities and needs of your child and the specific needs of your family. Therefore, you should allow yourself enough time to make these decisions about your child’s long-term care in adulthood prior to them reaching adult legal age.

What is the legal process for obtaining guardianship for my special needs child?​

​Should you determine that retaining guardianship over your child once he or she turns 18 is in your child’s best interest, you will need to file a petition in the probate court of the county where your child resides. The petition must include detailed personal and financial information, and there are several considerations that you should take into account when drafting the petition. The petition is the first of many steps in the guardianship process, which overall can be daunting and complicated. As a result, we advise that you meet with an expert in guardianship and probate laws to address the specific circumstances involving your special needs child. If you have questions, the attorneys of Flint, Connolly & Walker, LLP can help you navigate the guardianship process.

Lindsey Casey Franklin is an associate attorney with Flint, Connolly & Walker, LLP currently representing clients on various civil matters. If you seek legal advice pertaining to guardianships, conservatorships, or other probate matters, she and the other attorneys at Flint, Connolly & Walker, LLP have the knowledge and expertise to help you.