Category Archives: Grandparent issues

Becoming the guardian of a disabled child turning 18

By Sally M. Wagley, Maine elder law attorney

For most children, age 18 is regarded as a significant milestone, another marker on the road to independence. However, when a child has a mental or emotional disability, he or she may continue to be dependent on parents for decisions about living arrangements, health care, social services and finances. Once a child in Maine turns 18, a parent no longer has legal authority to make the child’s decisions. Health care providers may deny the parent access to the child’s medical information, and financial institutions may deny the parent access to the child’s money. In my role as a “special needs” lawyer, I help families in this time of transition.

Some children with disabilities may have the capacity and understanding to delegate authority to a parent under a durable financial power of attorney or health care directive. This is a simple document which can be executed in a lawyer’s office, with a minimum of time and expense. Other children, however, may be so disabled that they are unable to understand and to sign such a document. In this situation, the parent should seek to be appointed as the child’s guardian (and perhaps conservator as well, as discussed below).

Maine’s county probate courts are the courts which handle guardianship matters. These are the steps to obtaining guardianship of an adult disabled child in Maine:

1. Petition for appointment of guardian: The parent files a petition and related forms asking the court to appoint the parent as the child’s guardian and files the papers with the court.

2. Physician’s/psychologist’s report: A professional (such as the child’s physician) fills out a court form stating that the child needs a guardian.

3. Appointment of visitor: The court appoints a visitor to meet with the child and parents and report back to the court as to whether a guardianship is appropriate.

4. Hearing: A hearing is scheduled. Important people in the child’s life receive notice of the hearing. In many of Maine’s 16 probate courts, the hearing is fairly relaxed. The judge may ask a few questions and may make sure that the guardian understands his or her responsibilities. If it is clear to the judge that the appointment of a guardian is in the child’s best interest, the judge will immediately issue an order appointing the parent as the child’s guardian.

5. Conservatorship: If the child has money or other assets in excess of $5000, the parent may also need to seek appointment as the child’s conservator in order to be able to handle the child’s funds. This request should be made to the court at the same time as guardianship is requested.

The Maine probate courts try to make it as simple as possible for parents in this situation to become their child’s guardian. However, to the uninitiated, the process may be daunting. As attorneys with expertise in helping families with disabled children, we can help you either by representing you in the guardianship matter (appearing with you in court), or we can simply assist you with the paperwork, so that you can represent yourself. If you would like our help, please contact us for an appointment, law@leveyandwagley.com.

Second Time Around: Raising Grandchildren

Are you, or is someone you know, raising a grandchild?  People over 50 are increasingly responsible for the care of young children and adolescents.  Sometimes young adults are unable or unwilling to be good parents themselves due to military service, divorce, substance abuse, mental illness, or other problems.

Legal authority.  Grandparents caring for a child or teen often do so at a time when their own resources – physical and financial – are limited. What information should you have, and where can you turn for legal and financial help?  A grandparent must have legal authority to make decisions for that child – about issues such as medical care and schooling. This can be done in several ways.

  • If the child’s parents are willing, they can sign over a power of attorney, also called a delegation of parental rights, giving temporary rights to the grandparent to make medical, schooling and other decisions for the child.  This arrangement is meant to be temporary, and the parent may revoke the document at any time.   
  • If the child is to be enrolled in school, however, the school may insist that you do more — provide proof that you are the child’s legal guardian. To do this, you must file papers with the probate court. The process may be simple if the child’s parents agree, but will be more complex otherwise. The probate office at your county courthouse can tell you more.
  • If the child has been abused or neglected, the Department of Health and Human Services may be involved. You can seek to become the child’s foster parent, enabling you to make parenting decisions and get financial help. As a “caretaker relative,” you have the right to certain notices and information from the DHHS regarding their plans for the child. To read the Maine Department of Health and Human Services’ kinship care policy, go to www.maine.gov/dhhs/ocfs/cw/kinship.shtml
  • Some grandparents – typically, where the parents have died or abandoned the child – may adopt the child, through the probate court. If the child has a disability or special needs, a subsidy may be available to the adopting grandparents.

Financial help for grandparents. If you are on a fixed income, and unable to get support from the child’s parents, other help may be available:

  • The child may be eligible for Social Security Disablity or Supplemental Security Income  payments, because of the parent’s disability or death, or because the child is disabled.
  • The child may be also eligible for payments from the State’s Temporary Assistance to Needy Families program and health coverage through MaineCare (the Maine Medicaid program), regardless of your own income.  For helpful information on applying for assistance through these  programs, go to the website for the University of Maine Center on Aging, Maine Rural Relatives as Parents Outreach Program, to make use of the program’s “tip sheets.”  http://www.umaine.edu/mainecenteronaging/mhrapp.htm
  • If you need day care, the State’s child care voucher program may cover part of the cost.

Emotional support.   There are also support groups for grandparents and other relatives caring for young people.  For information, contact Maine Kids Kin:  Families & Children Together: www.mainekids-kin.org