A Brief Overview of Special Needs Guardianship
Can you describe Guardianship? Guardianship can be a challenging topic for many families. Guardianship needs to be separated into two distinct time periods: while parents are still alive and after parents die.
Let’s review the first time period of while parents are still alive.
An individual diagnosed with autism’s guardianship status is a topic that needs to be broached before he/she turns 18. At age 18, we all become legal adults able to enter into binding contracts, make our own health care decisions, and sign our own IEPs (Individualized Education Plan) without any parental involvement.
Guardianship is a legal process in which an individual is appointed as the final decision maker for another individual. In the case of a parent and a child with autism, the parent can become the Guardian of the 18-year-old with autism, through a specific legal process. Guardianship gives the parent final word on all decisions regarding his/her child.
It is very common for a parent to have reservations about becoming the Guardian of his/her child, especially if the child is developing well and has several abilities. One question to ask in this situation is, “What is the intellectual or developmental age of my child?” If your honest answer is below the age 18 (such as 14 or 12 years old), then you will want to ask yourself another question: “Would I let my 14-year-old make all his/her healthcare, education, housing, and financial decisions on his/her own and have those decisions be legally binding?” If your answer to that second question is, “Of course not!” then you may want to consider Guardianship.
Please know that if an adult child continues to develop and at some point in the future is able to make decisions on his/her own, the Guardian can approach the court to have Guardianship revoked.
The second time period that Guardianship needs to be considered is after parents die. The appointed Guardian in this situation will be responsible for day to day care or making decisions regarding that day to day care. The selection of a Guardian for this situation is often a large obstacle in completing a family’s Special Needs Plan.
The reason for this is due to the fact parents must make this decision before completing their Will (legal document that guides the court system in who the parents select as their child’s next Guardian after they die). If parents struggle with choosing a future Guardian, the following criteria may help when considering each possibility:
|2. Family Situation|
|3. Personality Qualities (Demeanor)|
|5. Experience with Special Needs|
|6. Knows your Loved One|
|7. Your Loved One Knows Them|
|8. Financial Position /Management|
|9. Marital Status|
|10. Profession (Work Schedule)|
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By utilizing these ten criteria, parents will be able to rank each possible future Guardian and arrive at the best possible choice. The next Guardian might never be quite as committed as a parent, but by employing a more objective process (using the above criteria), parents will be better equipped to find a qualified future Guardian that can care for their child when they [parents] pass away.
This article was featured in Issue 93 – ASD Advice for Today and Tomorrow