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Guardianship

No matter your child’s abilities, when she turns 18, she is a legal adult, a designation that comes with the rights, responsibilities, and consequences of her choices, as well as new levels of legal privacy protection (for example, physicians are no longer required to share personal health information with parents). Parents do not automatically remain their child's legal guardian past the age of 18. Considering whether a guardianship is appropriate for your family is an important part of your overall planning for your child’s future. If your teen has disabilities that do not allow him to make personal decisions in his own best interest, manage personal needs on his own, or communicate his needs, you will want to consider applying for guardianship. Guardianship grants the parent or caregiver the legal authority to make decisions for them after they turn 18. Guardianship is a court process, and cases are only heard/determined after the individual’s eighteenth birthday.
It is recommended that the guardianship process be started before the person turns 18. The process can take time, and being prepared ahead of time can ensure smooth transition. Once the young adult turns 18, obtaining guardianship (or taking away the legal rights of an adult) is a much more difficult process.

What is Guardianship?

Guardianship is a legal arrangement in which a person or persons are legally authorized to make decisions for another person. This role includes decisions about basic needs, such as food, clothing, shelter, medical care, and financial management. Becoming a guardian is a serious decision; depending on the laws of your state, a guardianship order may have to designate whether the individual who is deemed incapacitated will retain or surrender certain civil rights, such as the right to vote, drive, or marry. However, these arrangements can also be flexible enough to allow your young adult a new level of independence if she is capable and ready for it.

Evaluating the Need for Guardianship

Guardianship is a court-appointed role, but before any legal proceedings begin, the young adult’s skills, abilities, and deficits will be evaluated and documented to determine whether a guardian is necessary. Determining the need for guardianship will focus on the individual's ability to make decisions, communicate decisions once made, and understand the consequences of those decisions. For many young adults with special needs, the necessity for a guardian is clear, but you’ll still have to petition for the designation. You’ll need to gather evidence supporting your claim that your adult child needs a guardian, which may be as simple as gathering health records and recommendations from teachers, medical professionals, or therapists.

The Role of the Court/State

Once the need for guardianship is established, a court hearing is held, in which an attorney will represent the disabled individual. The parents or caregivers will be represented by a different attorney or they may choose to represent themselves. The court may grant either a "limited guardianship," authorizing the guardian to make only certain decisions (such as medical decisions), or "full guardianship," authorizing the guardian to make all decisions for the individual. In some states, a "limited guardianship" is granted unless the need for "full guardianship" is proven. Some states require the appointment of a "conservator" who will make important financial or estate planning decisions if needed, and in other states the guardian will act as conservator. The court may place an incapacitated person under a guardianship, conservatorship, or both. In some states, guardians must report to the court annually about their guardianship activities, the condition of the individual, and the status of the estate.

Contingency Planning

It is important for families to discuss who will have guardianship in the event of the guardian's death or inability to serve in that role. The person(s) responsible for guardianship must put their wishes in their will, so it’s important to plan ahead and take action to assure security, safety, guidance, and continuity for your child’s future.

Resources

Information & Support

For Parents and Patients

The Arc of the United States
The Arc works to include all children and adults with cognitive, intellectual, and developmental disabilities in every community. Many local chapters are available.

Guardianship Associates of Utah
Provides information and referral service for guardianship issues. Written materials, kits, and presentations are available; can help families obtain guardianship for an incapacitated family member; may be able to act as a legal guardian for incapacitated persons who have no family able to do so.

Office of Public Guardian, Utah
Provides public guardianship and conservatorship services to incapacitated adults. 801-538-8255.

National Disability Rights Network
NDRN is the nonprofit membership organization for the federally mandated Protection and Advocacy (P&A) Systems and Client Assistance Programs (CAP). Collectively, the P&A/CAP network is the largest provider of legally based advocacy services to people with disabilities in the United States.

The Guardianship Process (Disability Law Center, Utah) (PDF Document 82 KB)
This document from the Disability Law Center of Utah provides information about types of guardianship, procedures, alternatives, and Utah resources for families considering guardianship for youth.

National Guardianship Association
The website is an excellent source of information on the rights and responsibilities of the incapacitated individual, as well as the guardian. The site also has resources and provides educational training and network opportunities for guardians.

American Bar Association Commission on Mental and Physical Disability Law
Provides information on all aspects of the Americans with Disabilities Act, the Family and Medical Leave Act, and related legislation, including caregiver rights.

Services

Guardianship

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Legal Services, General

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Authors

Author: Chuck Norlin, MD - 6/2017
Reviewing Authors: Gina Pola-Money - 6/2017
Tina Persels - 6/2017
Alfred Romeo, RN, PhD - 6/2017
Content Last Updated: 6/2017