If you have questions pertaining to guardianship, this article will guide you along.
What is Guardianship?
Guardianship needs to be considered in two scenarios:
1. When the parents die
2. While the parents are still alive
First scenario: when the parents die
Let’s consider the scenario of parents passing away when the child still needs someone to care for him/her. That person is considered a Guardian. Choosing a Guardian can be challenging for many parents, and if it is for you, you are not alone.
A Special Needs Plan has developed a Guardian Selection Tool to help parents make that decision. Once you do, you will have to include that information in your will. A will is a legal document that informs the court system of your wishes, including who you want to legally make choices for your child.
Second scenario: when the parents are still alive
The second type of guardianship is when your child reaches the age of 18. At 18, he/she becomes a legal adult, which means all his/her decisions are his/her own, and he/she is legally responsible for those decisions. This includes decisions about money, decisions about education, and decisions about healthcare.
If your child needs help making and understanding the impact of these decisions, then you may want to proceed with Guardianship and begin that process by the time your child reaches the age of 17.5.
One of our team experts, herself a mom of an adult with a disability, poses a simple question to all parents when discussing the need for guardianship: “What is the intellectual or developmental age of your child?” She goes on to explain that whether your answer is 14 or 15 or 9 or 3 years old, then your next question should be: “Would you allow your 9-year-old to make decisions about his/her own health care, get a credit card, enter into a binding contract, or conduct their own IEP?” If your answer to that is “Of course not,” then you may want to consider becoming your child’s guardian when they turn 18, so you can legally stay in a parental role.
Guardianship does not have to be forever. You can become your child’s guardian when he/she turns 18, and if he/she has the ability to make his/her own decisions by the time he/she is 30 years old, you can petition the court to rescind the guardianship.
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I have heard there are different levels of guardianship, is that true?
In one word, yes. You can apply for different types of guardianship. You can apply for general guardianship, which means you’ll be considered the guardian of the estate (which is their money) and guardian of the person (day-to-day decisions).
You can also apply just for guardianship of the estate or just for guardianship of the person. You can even apply for limited guardianship. Wow, all of a sudden, this decision becomes more complicated, but let’s dive deeper and determine the reason behind each type.
General guardian is used when someone does not have the capacity to make decisions regarding their own care and their own money. It is rare that this type of guardianship is used for individuals with a disability because most of the time they intentionally do not have money in their own name so they can qualify for government benefits.
Rarely does an individual with a disability need a general guardian or a guardian of the estate because they don’t have an estate? Often they do, however, need a guardian of the person to help make decisions about health care choices, housing decisions, and other day-to-day living options.
Limited guardianship is used when parents want to preserve specific options for their children. One of those options that are most widely discussed is the ability to drive a car and attain a driver’s license. If driving a car is an option you want your child to have, then you need to “carve” that option out of guardianship. You can still be your adult child’s guardian and preserve their right to a driver’s license, you just need to be deliberate and communicate this as you go through the guardianship process.
In our next issue, we will discuss if you should hire an attorney to help you with guardianship and any alternatives to guardianship.
This article was featured in Issue 124 – Autism Around The World