Legal Guardianship for Adults | How to Get Guardianship for Adults with Disabilities

Guardianship of Developmentally Disabled Adults

Let’s face it. This is what keeps us up at night. Nothing has a parent facing their own mortality more than having a child with disabilities. This post is based on an interview I did with a lawyer about legal guardianship for adults with disabilities. This is for all disabilities that would make a person eligible for guardianship (more on that in a bit).

Does your adult child wander? Then you need to be their legal guardian. Because guess what? If a regular adult (who no one has guardianship over) wanders away from your home, no big deal!

disabled child guardianship what parents should know person standing on rocky ground

Adults are allowed to wander the planet at their will, and police/rescue do not have a responsibility to go look for him/her. If you have guardianship, they do.

That is just one of the many surprising things I learned.

Recently I was asked if I wanted to talk to someone about guardianship.

Talk to someone? Hell no! I try to avoid it at all costs.

Ostrich. Head in the sand, hands over my ears-la-la-la-la-I-Can’t-Hear-You.

If I think about it too much, I get an anxiety attack.

But, since I had the opportunity to interview a lawyer for this, it was actually an easy way to get information and start to develop a plan.

I spoke with Professor Scott Johnson of Kaplan University’s Concord Law School. He is currently a Hearing Officer with the New Hampshire Department of Education and was previously in private practice with a focus in administrative law, constitutional law, education law, and health law.

The following is the recap of what we talked about regarding guardianship and adult children with disabilities.

  • Types of guardianship
  • How to assess if guardianship is necessary
  • Special needs trusts
  • Repercussions of not being your child’s legal guardian

Please check your specific state regulations, as it can vary by state. This is not intended to be legal advice, merely helpful, anecdotal advice to give parents a starting point when thinking about guardianship for their adult child with special needs.

For me, it comes down to this question: Is my child (even though they’ll be an adult) able to protect himself? Right now, the answer to that is a hard NO.

Every couple of years, we hear some horror story out of Philly about some assholes who chained some disabled people in their basement and were keeping their money, feeding them just the bare minimum to keep them alive.

A situation like that could have been prevented if the person had a competent, caring, responsible guardian.

Explore the Different Models and Options

Guardianship is a deprivation of individual rights and should be sought only as a last resort.  If an individual has a disability, yet still maintains the capacity to execute powers of attorney, guardianship is not necessary. 

When appropriate, however, guardianship provides two important layers of protection (the guardian and the court), for those who have lost the ability to protect themselves.

Explore the different models and options: I knew that there were different options and legal proceedings, but did not realize that they follow an LRE model. That is, the courts will seek to place the individuals in the Least Restrictive Environment necessary.

Actual guardianship is difficult to get and it’s a lengthy process. The individual must be “incapacitated” as deemed by a doctor and the court, in order for another adult to gain guardianship.

What I didn’t know–the court actually appoints an attorney for the adult child who acts on their behalf. Remember that not every adult who is disabled is incapacitated to make decisions.

Thus, without this protection, a parent or relative could seek guardianship on an adult with other intentions (getting their Social Security Disability Income, perhaps) when the person can live independently with supports and can make decisions. Self-determination is always the goal!

You must prove beyond a “reasonable doubt” that this person needs a guardian-that they cannot fully understand information and make important decisions. Different states handle this differently depending on the child’s situation–they may appoint a GAL, make them a ward of the state, etc.

Decide who will take over after you.

Develop a long term plan. Here is another thing that was surprising to me. I did not know that I cannot “will” my guardianship to someone else. As my son approaches 18, we will petition the court for guardianship (very likely, anyway). I had always {wrongly} assumed that I would take guardianship, and then our will/trust would be set up so that it would go to Brian when the time came. I can’t do that. As an adult, Brian will then have to petition the court to become his guardian and they both will have to go through the whole process again.

Who can be my Child’s Guardian?

Any person or agency may serve as guardian who:

  • Is at least 18 years
  • Is a resident of the United States
  • Is not of unsound mind
  • Is not under a finding of disability themselves (IE, if someone has guardianship over them, they cannot be a guardian)
  • This party varies by State, which is why it’s important to speak with an attorney: Has not been convicted of a felony involving harm or threat to an elderly person or person with a disability, including a felony sexual offense. The court may appoint an individual who has been convicted of a felony other than those noted above, so long as the court finds it to be in the best interest of the ward and there is evidence of rehabilitation.
  • Any public agency or not-for-profit corporation found capable by the court of providing the care and/or support the ward requires (very common for groups like the Arc to do this)
  • Any corporation qualified to accept and execute trusts may serve as guardian of the estate.

There are other options besides legal guardianship for adults with disabilities. If your adult child does not need full guardianship, these are some of the other options.

  • Joint bank accounts (neither can sign a check or make a payment over $100 without 2 signatures or something like that)
  • Power of Attorney-can be medical, educational, etc.
  • Limited conservatorship
  • Health care proxy or agent

There are different levels and many different options, so if your child does not need full guardianship but needs something, there probably are good options available.

Again, remember that you will have to follow a Least Restrictive model and prove as such.

What can happen if a Disabled Adult does not have a Guardian?

If a person is 18, and the parent has not done anything, then that person is a legal adult. They can enter contracts, refuse services, and sign leases. I want my son to have access to as many rights and freedoms as he can enjoy. But I also need for him to have as many legal protections as he is entitled to.

Basically they can do anything that any other adult can do. They can even be drafted into the service!

In some cases, you may be able to undo mistakes, but it will take time and money.

Can Disabled Adults with Guardianship be Arrested?

Short answer is yes. Getting guardianship for your adult with disabilities does not protect them from being arrested. After all, they may still commit crimes.

Talk with an attorney who specializes in this. Some developmentally disabled folks do have difficulty distinguishing between right and wrong, and you want to protect your son/daughter as best you can.

Also, many of our kids/teens/adults exhibit behaviors that are not dangerous, but when misunderstood, are seen as peculiar and threatening by others who are not familiar with disabilities.

As the statistics stand right now, over half of all people killed by police have a disability of some kind. And it’s not just shootings and mental illness. You may have heard of the incidents of young men with Down Syndrome being suffocated while being restrained by police.

Watch What is Happening with Britney

I don’t want to speak out of my limits here, but it might be of particular interest to watch what is happening with Britney Spears. She had a very well known, well publicized mental health crisis a few years ago. As a result of that, her dad became her Conservator.

Actually, the term Conservator and Guardian are the same, legally. I guess for whatever reason, the media like “conservator” for her better than guardian. And, we don’t know the details of her guardianship.

We do know that it appears that she is fighting it, as a Ward is always entitled to do.

What can a Guardian do?

Once guardianship is obtained, a Guardian/Ward relationship is established. Yes, this may also be a brother/sister relationship or parent/child. But in legal terms, you will also now be Guardian/Ward.

Examples of the limitations of guardianship include, but are not limited to:

  • No authority for permanent placement in a care facility without court approval;
  • The Ward cannot be forcibly medicated, except by order of the court;
  • Ward cannot be kept isolated from any person, except at their request, or by order of the court for the ward’s safety;
  • A Ward cannot be prevented from requesting a hearing to seek restoration of rights (as Britney Spears is doing right now)

Once your family has decided upon the option for you, it’s time to get started. Your county and state agencies will let you know how much before the 18th birthday you can start doing this.

How to Obtain Legal Guardianship of a Disabled Adult

  1. Have a Vision Statement.

    This is the most important. Your child needs to guide you into developing their future. Not the other way around. Use that link to get the free workbook and do the activity. Even if your child is past IEP age, they should have a future plan.

  2. Contact your State’s or County’s office of Developmental Disabilities.

    Many of them have packets already made up that they can send to you. Or, direct you to the website to begin the process.

  3. Find a Family Attorney.

    The court is going to appoint an attorney for your child to protect their interests. (as it should be!) You should find one because it can make the process go smoother and quicker if you have a knowledgeable person helping you.

  4. Start working on the paperwork.

    This is a lengthy and cumbersome process. Again, as it should be! No adult should be able to just claim guardianship over another without a process. Be patient, keep good records.

  5. Do your Will.

    As stated above, you cannot “will” guardianship to another person. So once I have it, I cannot will it to my other child. However, you can still make your wishes known, should that other person run into difficulties when (gulp!) we pass away.

More Information about Guardianship

Contact your state’s Protection and Advocacy group for Disabilities.

So, there you go. All the news that’s fit to print. It should be enough to get your wheels turning and get you started. Hopefully getting things in order will give some peace of mind.

Please check your specific state regulations, as it can vary by state. This is not intended to be legal advice, merely helpful, anecdotal advice to give parents a starting point when thinking about legal guardianship for their developomentally disabled adult.

If you see an error, please let me know. I did this interview over 3 weeks ago and having trouble deciphering some of my notes!

After our conversation about guardianship, we talked about parents going pro se in Due Process.

Yes, this is another post done in previous years but recently updated.

disabled child guardianship what parents should know person standing on rocky ground
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