Regardless of the severity of an individual’s cognitive impairment, that individual is presumed to be a competent adult at the age of 18. If the person will be unable to make important choices, the naming of one or more guardians should be considered. A guardian is a court appointee who is authorized to make decisions for a “ward.”
On the other hand, there are high-functioning individuals with developmental disabilities or mental illness who are not appropriate candidates for guardianship. They may be able to work, determine where they wish to live, vote, even get married–yet they may need assistance with medical and legal decision-making. For them, a health care proxy and power of attorney are good alternatives. It’s essential that parents begin thinking about these options when a child with disabilities turns 17.
Because guardianship is governed by state law, incapacity guidelines, application processes and defined responsibilities differ somewhat across the U.S. In some states, it’s referred to as “conservatorship.” Depending on the state and individual circumstances, the process can take several weeks or months to complete. Full guardianship typically involves responsibility for making decisions regarding basic needs, personal property, finances and medical treatment. In many states, though, limited guardianship is also recognized, based upon the ward’s capabilities. In such cases, the court will stipulate which decisions a guardian should handle.
If the guardianship applicant is represented by an attorney, then the alleged incapacitated person generally is represented by another attorney or an individual known as an “ad litem,” who protects the “best interests” of the alleged incapacitated person. Many states stipulate that affidavits or reports from physicians, psychiatrists, therapists and educators be provided to support the guardianship petition.
If a petition for guardianship is contested, the process becomes both time-consuming and expensive. Mediation, an option in many jurisdictions, typically is less costly. There may be some mediation programs, staffed by volunteers, for which there is no fee.
Guardianship is a serious responsibility that should not be considered inconsistent with self-determination. While an individual with disabilities may require assistance handling certain complex decisions, that person’s preferences and values should always be respected by the guardian.
About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.
Requirements for Reproducing this Article: The above article may be reprinted only if it appears unmodified, including both the author description above the title and the “About this Article” paragraph immediately following the article, accompanied by the following statement: “Reprinted with permission of the Special Needs Alliance – www.specialneedsalliance.org
my son is schizophrenic since 16 years old.he has been
in and out of mental hospitals;group homes;etc.he is
53 years old.he was just released from state hospital.
i had him on my record at v.a. hospital;but he did not
receive disabled adult child benefits until 2005;by the
adm.law judge;seatte.the head dr.at the state hospital
sent his diagnosis to the opm office;and my copy states
he is incapable to take care of himself.he is in a grp.
home since 7/17;but they try to force him to sign papers;
etc;he does not understand.i had the court appoint him
a guardian;after i filled out papers with the help of
the court laison in 2016.he was denied help to have a
guardian;and the state sent me a message back;tghat
the public guardian office has no funds in several
years.(2016)i am getting up in age;and would like an
to help my son get into a residential place for persons
who the doctors state is incapable to care for himself.
the group home keeps calling me;to try to get my son
to sign papers.i do not drive a car;and because it
is getting later in the day time;i would not want to risk
a trip there.my brother and his wife;both are in their
80’s;and live in the seattle area;but are disabled.
his twin brother is bi-polar;lives in his own apt;but he
is also on ss disability;and is bi-polar. please send any information about any residential place;besides a
group home in seattle area.my son;who is schizophrenic
told the social worker;prior to his discharge from the
state hospital in 7/17;he did not want to live in seattle
area.he is now in the group home in auburn,wash-
ington;since 7/17my daughter;who lives back east
came to portland after my son was placed in the group
home;and rented a car;and took me and his twin to visit him. his room is cramped;with beds too close;and the staff seems to have a system that is not cooperative with
each other.i am waiting for the opm office;since august
2017;when the state hospital doctor;sent them papers
stating my son was not capable to care for himself.the
group home is trying to put him on a schedule to teach
him how to care for himself;that the doctor he cannot do.
i had contacted the opm offfice because;my son was
in seattle sinc e the 1980’s;when my mother was still
alive.i came out here years later;because i was still
employed by the n.y.c. v.a.. i told the opm office that
i feel that my son should be allowed disabled adult child
benefits;from the time i placed him on my work record;
but because i came out here later;with the help of
a seattle lawyer;he was just placed on the disabled
adult child benefits.years ago;he was placed in the
same group home;and when he got the disabled adult
child benefits;a worker in the group home at that time alerted me that the dept.of social services took some
of the retroactive money. i wrote to the social security
regional office(still have my letter);and they called my
other son into their office;(dept.of social services)and
had him call me’stating they were going to put the
retroactive money back;but i still have no way of
knowing. i think there should be someone who can look after my son’s best interest.thank you for any help and
information.all statements can be proven by papers
i saved from the lawyers;(court appointed by the court
for guardianship;that failed;the administrative law judge’s
decision in 2005;and the attorney who got my son
the proof he needed disabled adult child benefits.
thank you for any help,and information,
to who it may concern;
i cannot understand why in 2016;after the court appointed an attorney;who visited my son in the hospital;
after visiting him.(she also was in contact with me;by
letters;mostly);then stated my son was not eligible to
have a guardian appointed.i thought his disabled adult
child benefits;appointed by administrative law judge in
2005;should be sufficient.i was also dissappointed
that the administrative office of the court;(contacted them
by phone);did not have money;they stated for several
years.i contacted;[email protected];who
is the head of the office of the public guardian;ofice of
elders & guardianship services;1112 quince st.s.e.bldg.1;
p.o. box 41170;olympia,wa.98504-1170;360-956-5302.
fax#:360-956-5700.
thank you.please excuse all mistakes.mildred e. johnson
[…] most states, both arrangements require extensive legal processes, including confirmation of incapacity. Some states may carve out specific areas of incapacity while […]