Financial planner Ryan Platt builds on his advice for parents confused about applying for Guardianship for young adults.
In the last issue, I began answering questions about Guardianship. A guardian is someone who is legally responsible for the care of another person. As a parent of a child with a diagnosis, it means you stay in the “decision-making” parenting role when your child reaches the age of 18.
Q. Can I undertake Guardianship myself or do I need an attorney?
For those living in the United States, in most areas you can apply for Guardianship yourself, without the assistance of an attorney. You will need to contact your County Clerk of Courts and ask for the Guardianship paperwork. You will need to confirm the type of documentation you will need to provide the court in order for Guardianship to be granted.
Your child will receive their own court-appointed representative called a Guardian Ad Litem, designed to ensure that the Guardianship is needed. This is not a confrontational relationship, but purely informational to ensure the court is doing the right thing for your child, and for you, in granting Guardianship.
You will also have a hearing where a judge will make the final determination of Guardianship. In some areas of the country, this can be informal, in other areas it will be more of a formal court proceeding.
If you are considering a more limited Guardianship situation, and you want to carve out certain rights and privileges for your child to keep, such as having a driver’s license, it is probably best to hire an experienced Guardianship attorney so that all the details are completed properly.
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Q. Are there alternatives to Guardianship?
The answer to this question depends on the definition of “alternatives.” Guardianship is a legal proceeding that gives one person’s legally binding decision-making authority to another person. There is no alternative to that from the court’s perspective. However, there may be other options that may fit your family.
If you are unsure about Guardianship, you will want to consider Power of Attorneys (Durable and Healthcare). These documents allow your child to choose who he or she would like to make decisions for him/her, but only in cases where he/she lacks capacity. If your adult child signs a power of attorney, the lawyer that has him/her sign those documents is attesting that your child has capacity at the moment of signing such documents.
That means your adult child understands the documents, can explain what he/she does, and he/she understands the impact of such decisions with regards to healthcare and money choices.
The power of attorney will come into play only when your adult child no longer illustrates the ability to have capacity, which is more than likely when they are in an emergency situation such as an accident that renders them unconscious or even comatose. Powers of Attorney are not a replacement for Guardianship and do not give you the same legal rights to be the final decision maker for your child.
Q. What is supported decision-making?
Supported decision-making is becoming more popular, or at least is becoming part of the conversation. It may be helpful for adults with special needs to make decisions including medical, housing options, and day-to-day life choices. The adult with a disability creates a pseudo-Board of Directors comprising trusted friends, family, and professionals to help him/her make decisions.
There are a handful of states that offer formalized, supported decision-making agreements that provide guidelines of the decision-making process and the roles of each team member. This type of arrangement does not offer the same kind of legal protection for the adult with a disability as Guardianship does, but it is certainly something to consider if it fits for your family and your loved one.
This article was featured in Issue 125 – Unwrapping ABA Therapy