As if parents of children with disabilities didn’t have enough challenges (with the accompanying rewards) as part of raising their child, one more possible roadblock waits for them when the child turns 18.  In Tennessee, as in most states, a person who reaches the age of 18 is presumed to be legally competent and able to make all their own decisions.

This presumption applies regardless how mild or severe your child’s disability may be, and your 18 year old child now has the right to:

  • Make his own medical decisions, including refusing procedures and medications,
  • Enter into contractual agreements, including credit cards, loans, and other obligations,
  • Keep medical, financial, and educational records private (even from you),
  • Make his own educational decisions, including whether to accept or refuse special education services,
  • Enter into marriage,
  • Decide where to live and who to live with.

It doesn’t take much imagination to see how these new rights can put a person with disabilities in a position where he could either be taken advantage of, or otherwise get himself into trouble.  As the parents of an adult, you may find yourself powerless to prevent the exploitation of your child.  What can you do?

Does your adult child need a conservatorship?

It may be that your best option is to ask a court to appoint a conservator for your child.  In order to do this, a Tennessee law requires that the court must find, by clear and convincing evidence, that your adult child is “fully or partially disabled and that the respondent is in need of assistance from the court”.

The court isn’t as concerned about what the disability is, as much as the effect the disability has on the person’s ability to take care of themselves.  Therefore, some helpful questions to consider are:

  • Does the person understand the value of money and the approximate cost of common items (milk, bread, aspirin, etc.)?
  • Does the person understand the effects of debt?  For example, does he understand what happens if he uses a credit card to buy things?
  • Does the person know what all his medications do, and what the side effects are?
  • If the person were to need a refill of their prescription, would he know what to do?
  • Can the person schedule, keep, and pay for an appointment with the doctor?
  • Is the person able to advocate for his own needs, such as accommodations at school or work?
  • Could the person find and manage their own housing?
  • Could the person plan a series of meals, then purchase groceries needed to prepare those meals?
  • Does the person choose to eat normal (relatively healthy) meals, or does he tend to gorge on candy and other junk?
  • Does the person adapt well to changes to their schedule, transportation arrangements, or other aspects of their life?
  • If the person were injured, lost, or otherwise in difficulty, would he be able to seek appropriate help?
  • Does this person handle interacting with people they don’t know in an appropriate manner?

This is certainly not an all-inclusive list, and there are an infinite number of factors that the court could potentially consider.  However, if many of the answers to the above questions are “no”, you may need to consider a conservatorship.

In addition, the court will normally require a report by either a physician or psychologist providing further detail on the person’s medical background and need for assistance from a conservator.

What you need to know

If you have an adult in your family (or even someone outside of your family) who has a disability that causes them to have trouble managing their affairs, you should ask yourself the above questions or perhaps discuss them with a friend or family member.  If you are able, you may want to consult with their physician or psychologist about whether some assistance may be necessary.

The decision whether a conservatorship might be appropriate is only the first step.  The second should be a consultation with a lawyer who can guide you through the legal process of asking the court for help.

It may be that a power of attorney would be more suitable than a conservatorship, but each of these situations is unique and sometimes there are no clear answers.  If you know of someone who may need assistance, don’t hesitate to contact me so we can discuss how I can make this process as easy as possible for both you and your child.