Guardianship – Description, Alternatives, Types
Guardianship, the legal power to care for another person and manage his or her affairs, is an important consideration when young adults with developmental disabilities reach age 18.
It is important for parents to realize that under the law everyone is considered to be an emancipated adult (their own legal guardian) at age 18, regardless of their disability. If the parent believes it is necessary for them to gain or maintain guardianship of their adult child after the age of 18, this can only be done through a court proceeding, which may be lengthy and expensive.
It may be important for some individuals with disabilities to have someone who is legally responsible to assist the individual with financial, medical, educational, and other important decisions.
Any action to establish guardianship of an adult with a disability must be filed in the probate court of the county of residence of the person for whom guardianship is being sought. Filing for guardianship is generally done with the assistance of an attorney, and includes a petition, followed by a hearing to prove that the person is incapacitated (unable to serve as his or her own guardian).
Guardianship by another person by definition restricts that individual's rights and freedoms as a citizen, and should therefore not be entered into without serious consideration, including exploring alternatives which may better suit the individual's needs while still providing legal protection. (Follow these links for descriptions displayed in alphabetical order on in.gov web site: Representative Payee, Health Care Representative, Specific Power of Attorney, and Durable Power of Attorney, Special Needs Trusts.)
There are three types of guardianship: regular, limited, and temporary. The general process for obtaining guardianship is as follows:
- Initiate a petition for guardianship with an attorney. It is helpful to use an attorney with expertise and previous experience in guardianship cases to keep costs reasonable.
- Attend and participate in a hearing held at the probate court of the county where the individual resides. The purpose of the hearing is to prove to the judge that the individual is incapacitated and in need of a legal guardian.
- The judge makes the ruling.
It is critical that each person with a disability have someone to play the role of an advocate. This may be a sibling, relative, or family friend. It should be someone who knows the person well, including his or her likes and dislikes, needs, and capabilities. Additionally, an advocate should communicate with others who may be serving in a support role.