Guardianship for Developmentally Disabled Adults FAQ: Do you need one, and what does it mean?

Guardianship FAQ

A guardianship is a court action that determines an adult person does not have the legal capacity (ability) to take care of themselves in one or more areas. If a person does not have that ability, then a court will appoint another person to act on that person's behalf, that is, make decisions regarding residence, medical care, and financial matters.
Sort of, but not really. When a court finds that a person does not have the capacity (ability) to take care of themselves in one or more areas, the court will appoint a person as guardian and charge that guardian with making decisions about the person's care in those areas. For example, if a person has a guardian over medical care, then the guardian will make medical decisions and give consent to treatments. The guardian can talk to the person about their wishes, but the actual decision making power lies with the guardian. Similarly, if a guardian has been appointed to manage a person's financial affairs, the guardian can talk to the person about how they want to spend their money, but the guardian ultimately has control over the use and management of the money. Technically the guardianship does remove the right of a person to make their own decisions in the areas covered by the guardianship, but the intent behind it is not punitive, it is because the person is not able to make decisions that will ensure they have appropriate food, housing and medical care. Without a guardianship, if a person was making a decision that would endanger them, no one would be able to step in and stop it.
It should cover only the areas in which the individual is not competent to make their own decisions. For this reason, some guardianships are considered "partial." For example, a person may fully understand their medical situation and be able to make reasoned decisions about their medical care and treatment, but be unable to determine when they are being taken advantage of by others, making them vulnerable to financial fraud. This person would probably have guardianship over personal or financial matters only. Some people do need a broad guardianship, but can retain the right to make decisions in certain specific areas, such as deciding where to live, or making employment decisions for themselves. Many people under guardianship do retain the right to vote and marry.
The guardian is responsible to make sure the person has access to food, shelter and medical care (or whichever areas the guardianship covers) and that the person has all available resources that they are eligible for. The guardianship should regularly visit and communicate with the person or their caregivers and determine whether all needs are met. If there are needs that are not being met, the guardian should attempt to locate resources to do so. The guardian will need to provide periodic reports to the court on the condition and well being of the person, and must notify the court of any changes or if the guardian cannot continue in that role for any reason.
A guardian is not responsible for personally providing financial or other support. A guardian is not required to take the person into their own home. A guardian is also generally not legally responsible for harm that the person may cause to others.
At age 18, children gain the right to self-determination and parents lose the right to have unrestricted access to medical and educational records and to make decisions on behalf of their children. Therefore, if your child will need a guardian, age 18 is when you should go to court. Sometime during your child's 17th year, make an appointment with an attorney to find out what the process is and prepare for the application. However, if you have not gotten guardianship at age 18, you can still seek guardianship at any time after that if it becomes apparent a guardian is needed. If a person under guardianship later develops the skills to care for themselves, the guardianship can be dissolved.
Once your child turns 18, parents lose all right to see educational and medical records, or to talk to doctors or teachers, unless the child has given permission. If you don't have guardianship, and your child won't or can't give permission for you to be involved, you may not be able to go to medical appointments, special education meetings, or handle bank or benefits matters. If your child needs medical treatment and is not able to independently consent to that treatment, care may be delayed while the medical practice figures out what to do. If your child is an inpatient in a psychiatric hospital and refuses to give consent to communicate with you, you may not be able to find out what is going on.
Developmental disabilities vary widely in their effect on the ability of individuals to care for themselves. Most of the time it is very clear whether or not a person is able to make their own decisions. But for some, the answer is not clear. And for some parents, the hope is that their child will continue to develop skills and while they may not be able to care for themselves at 18, they might be able to do so in later years. When considering guardianship for a young adult where the answer is not clear, here are things you should be thinking about: - does your child understand concepts well enough to make a decision, or are they dependent on you to tell them what they should do? - do you trust your child to know when to ask you for help? Does your child take your advice? - is your child vulnerable to outside influence? Would they do what a friend told them to do, even if you had told them it was a bad idea? - does your child understand money well enough to put aside what is needed to pay bills before spending on recreation? - does your child resist necessary medical treatments or does your child understand that doing things they would rather not do is required for medical treatment? All 18 year old's make bad decisions sometimes. The difference between an inexperienced decision maker and a person who lacks the needed mental capacity to make an appropriate decision is the ability to learn from mistakes, to understand when and how decisions have resulted in bad outcomes, and the ability to analyze and apply new information to situations. If your think that your child does not have the ability to do those things, a guardianship may be the best way to protect them from harm.

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