Most parents are aware that they can designate a legal guardian for their minor child (under age 18) in the event of the parent’s death in a Will.  But what if the child is an adult with special needs or disability? Parents of adult children with significant special needs or disabilities often worry about who will have authority to advocate for and make necessary personal and medical decisions for their child if the parent could no longer do so.

Under Arizona law, ARS Sec. 14-5301(A), a parent, by Will or other signed writing, may appoint a guardian for an unmarried child who the parent believes is an incapacitated person and even specify desired limitations on the powers to be given to the guardian. This appointment will go into effect after the parent’s death, or if the Court determines the parent is incapacitated and is no longer able to care for the incapacitated child, whichever occurs first. This is a simple way parents of children with significant special needs or disabilities can help plan for their child’s future beyond the parent’s lifetime.

Another option is for the parent to seek court appointment of legal guardian(s) for their child during the parent’s lifetime. For example, the parent may petition the Court to appoint themselves and another individual (e.g., sibling of the child with special needs or disabilities) as Co-Guardians, with independent authority to act. In this instance, if the parent later dies or becomes incapacitated the desired individual will simply continue to act as sole legal guardian. This often gives the greatest peace of mind to the parent, and gives the next decision maker/advocate the experience and knowledge necessary to ensure best continuity of care for the child with special needs or disabilities.

If you have a child with special needs or disability (minor or adult) and want to best plan for their future, we are here to help. Note: you should always work with an experienced special needs planning attorney. Call us today at 480-922-1010 or email to schedule your consultation.


-Stephanie A. Bivens, Esq., CELA


Disclaimer: The information contained in this article is provided for informational purposes only, and should not be construed as offering legal advice or creating an attorney client relationship between the reader and the firm or author. You should not act or refrain from acting on the basis of any content included in this article without seeking appropriate legal advice about your individual facts and circumstances from an attorney licensed in your state. Bivens and Associates, P.L.L.C. expressly disclaims all liability with respect to actions taken or not taken based on any or all information contained in this article.