Adult Guardianship: A Discussion

 August 15, 2013
Posted by M&LAdmin4

Thursday, August 15th, 2013

A parent inherits many responsibilities when they welcome a child into the world; to begin, they are responsible for providing a safe and loving home for that child. They need to provide a level of care necessary to meet the physical, mental and emotional needs of the child, and also need to make decisions regarding the child’s care, education, religious and moral instruction, diet, etc. on a daily basis.  As well as caring for the child’s immediate, day-to-day needs, parents also need to prepare and plan for the future of the child. In addition to these (and many, many, many other responsibilities), parents also need to make sure that they teach their children how to take care of themselves; they need to ensure that their children have learned how to make decisions, and to plan and prepare for their own future, as they age in adulthood – a time when, typically, parental responsibilities ease.

Parents of children with special needs, however, may find that their parental responsibilities will continue as the child ages into adulthood. Parents of individuals with special needs – individuals who, due to the nature of their individual disability(ies), are unable to take care of themselves – may need to investigate their legal options. If an individual cannot make the necessary decisions required to ensure his or her own well being as adult, for whatever reason, then the parent of that individual may need to find legal way to ensure that they can retain responsibility for the care of that adult, as well as the authorization to make decisions on the adult’s behalf. One such legal method is Adult Guardianship.

What is Adult Guardianship?

Adult Guardianship is a legal procedure wherein a guardian (either a person or an entity approved by a court of law) is appointed to care for an adult that has been deemed   legally “incompetent”, due to an intellectual, developmental, physical or mental disability, of caring for him or herself. The appointed guardian is responsible for the safety and well being of this individual, and makes decisions that govern the individual’s care and day-to-day life. A guardian may also manage the finances and estate of the individual with a disability (known as the ward).

Guardianship can come in many forms; Guardianship of the Person is a form of guardianship in which the guardian makes decisions regarding the individual’s ‘person’ only, i.e. medical decisions, etc. In the case of Guardianship of the Estate or Conservatorship, the guardian is responsible for managing the estate of the ward. This form of guardianship is often assumed when the ward has a number of assets, or expects to become wealthy through an inheritance, etc. Guardianship of the Person and Estate/Conservatorship encompasses all decisions relating to the person, and Limited Guardianship of the Person, Estate or Both is assumed when the ward is determined by the court to retain some capacity for rational decision making.

How Do I Become A Guardian for my Adult Child?

The steps to assuming guardianship for adults with disabilities vary from state to state. Generally, however, the first step is to file a legal petition. In this petition, the individual or entity looking to assume the role of guardian is nominated. In the case that the petition is not filed by the individual’s nearest relatives (the individual for who guardianship is petitioned, that is) then the filers of the petition may need to notify these relatives of the action via mail. The petition needs to include medical affidavits, documentation, etc. that shows that the individual for whom guardianship is petitioned is incapable of assuming responsibility for his or her own care.

Once this petition has been filed, the court arranges for the necessary evaluation of the individual for whom guardianship is being petitioned. In many cases, the court will appoint a guardian ad litem. The guardian ad litem is a person who is independent of both those filing the petition, and the individual for whom the petition is filed. He or she will act as a liaison between all parties involved, and ensures that the individual for whom the petition is filed is aware of her or her legal rights and responsibilities; this guardian ad litem will also provide a report to the court, which may include a detailed summary of the individual’s condition and prognosis. In some cases, the court may also appoint a medical professional to examine the individual, and offer an opinion as to the competency of the individual to the court.

If the individual for whom the petition is filed protests the petition, a trail is held. The trial will include testimony from the individual with a disability, the petitioners, and medical professionals in an attempt to determine competency of the individual for who the petition is filed, and therefore to determine the validity of the petition. If the petition is determined as valid and is upheld, a guardian is appointed. The court will then issue that guardian legal documents that authorize him, her, or them to make decisions on behalf of the legally incapacitated person. Often, the court will require this guardian to file yearly reports that detail the mental, physical and emotional condition of the ward.

Is Adult Guardianship the Right Choice for My Child with a Disability?

Adult guardianship is a very important step; essentially, by petitioning for guardianship of an adult, the petitioner is attempting to assume the right to make all the decisions on behalf of the individual. When abused, this can be a serious breach of civil liberties. It is important for parents to understand that if the adult is capable of making some, but not all, of the decisions regarding his or her welfare, then there are other, less restrictive alternatives to Adult Guardianship. Once such example is a medical power of attorney and HIPPA.  For more information on alternatives to adult guardianship, please contact a legal representative that is licensed to practice law in the state in which you reside.

For some parents, however, adult guardianship is an important tool that can help you and your family ensure that your family member with special needs is protected now, and after you are gone. It can ensure that your child with special needs is not taken advantage of, and you can ensure that he or she receives the proper medical attention; it can prove useful when advocating on behalf of your child for public benefits, housing programs, grants, funding, etc. It can also create a double layer of protection for your child – that of you, the guardian, as well as that of the court.

For a detailed discussion of the pros and cons of adult guardianship, please visit the following article: Pros and Cons of Adult Guardianship for Individuals with Disabilities. Please note that our above discussion of guardianship is intended to be used for informational purposes only; for specific advice, please contact a legal representative in your state.

Thank you all for dropping by our blog today! We strive to educate families with special needs on important issues such as adult guardianship, as well as provide the necessary information and tools that you require to plan for your family’s future. If you have any questions, or require more information on this or any other special needs planning related topic, please contact us!

From the staff of M&L Special Needs Planning, LLC, have a great Thursday and an even better weekend. 🙂

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