What is guardianship?
Guardianship is a legal means of protecting children and adults who cannot take care of themselves, make decisions that are in their own best interest, or handle their assets. When the court determines that a person is incapable of handling either their personal and/or financial affairs and appoints a guardian, the person who is disabled is referred to as the guardian’s ward. A guardian is responsible for monitoring the care of the ward. The guardian need not use their own money for the ward’s expenses, provide daily supervision of the ward, or even live with the ward. However, the guardian must attempt to ensure that the ward is receiving proper care and supervision, and the guardian is responsible for decisions regarding most medical care, education, and vocational issues. For highly unusual decisions that were not anticipated at the time of the original guardianship hearing, the guardian should ask the court for instructions. The court must make decisions involving intrusive forms of treatment, such as administration of antipsychotic medication, sterilization, and the withdrawal of life-prolonging treatments.
These unusual issues may be decided by parents and memorialized in their letter of intent for the care of their child. The court supervises guardianships; therefore, the guardian is required to report to the court annually on the status of the ward.
How do I obtain guardianship for my adult child?
If your child is not capable of caring for themselves or managing their finances, then you can seek a guardianship. However, just because you are the parent doesn’t mean you are automatically named as guardian. You, like anyone else, must go through the legal system. When establishing that your child is legally incompetent to care for themselves or manage their finances, your statement of their disabilities alone is not legally adequate. You will need to produce documentation of their diagnosis and associated disabilities. You may even need to pay to have their doctor testify in court or write affidavits concerning your child’s medical condition and their capabilities.
Although obtaining guardianship is usually not a contentious issue, it can be time consuming and will cost money. To obtain guardianship, you need to hire an attorney and go to court. Be prepared for a complicated legal proceeding designed to protect your child’s right to due process under the law. As with all guardianships, an attorney will be appointed to represent the rights of your child (the ward). A formal hearing will be held before a county judge to hear evidence whether your child is substantially unable to provide food, clothing, or shelter for themselves; to care for their physical health; or to manage their financial affairs. If so, the judge will appoint a guardian.
Because you are the one who is asking to be guardian, the court will appoint you (unless you are for some reason legally disqualified). At that point, you will have legal authority to make both monetary and medical decisions for your child. Equally important, your child’s legal authority to manage funds will be terminated so that they cannot put the funds at risk. It often makes sense to name coguardians (for example, you and your spouse or you and another child) so if one dies or cannot continue for any reason, you have a backup without going through the court process all over again.
Many states allow the legal guardian to name a successor guardian. This is an important issue that should be discussed fully with both the successor guardian and your attorney. This declaration of guardianship can be contained in your will or in a separate legal document. When you die, the person named as the replacement guardian goes to court so the judge can appoint them as guardian (unless for some reason they are legally disqualified).
Many states allow the legal guardian to name a successor guardian.
What does the Rehabilitation Act of 1973 have to do with the education of my child?
As it turns out, this act has a lot to do with making accommodations for disabled children in schools. This act, specifically Section 504 of the act, is an important federal law for people with disabilities. Section 504 is a civil rights law. Its broad purpose is to protect disabled individuals from discrimination due to their disabilities. To be eligible for protection under section 504, a child must have a physical or mental impairment that substantially limits at least one major life activity. The Americans with Disabilities Act (ADA) is a similar document. It follows the format of section 504 but broadens the agencies that must comply with the rights and procedures outlined in section 504.
It is important to realize that section 504 and ADA do not guarantee direct special education services like those provided by the IDEA. The law states that reasonable arrangements must be made for disabled students, but what are reasonable arrangements? Common accommodations made under section 504 or ADA include using assistive technology, removing obstacles to effective communications, and altering rules and policies. These accommodations may include granting children additional time for testing or allowing them to use other testing methods. Additionally, school personnel may change curriculum, materials, or architecture to meet the needs of a disabled student. Under section 504, if parents believe that their child has a disability, whether from autism or any other limitation, and the school system has reason to believe that the child needs special education or related services, the school is legally bound to evaluate the child to determine whether they are disabled as defined by section 504.
Terms:
Accommodations – Changes in curriculum or instruction that do not substantially modify the requirements of the class or alter the content standards or benchmarks.Accommodations are determined by the individual education plan (IEP) team and are documented in the student IEP.
Americans with Disabilities Act (ADA) – A federal civil rights law passed in 1990. It prohibits discrimination on the basis of disability in (1) employment; (2) programs, services, and activities of state and local government agencies; and (3) goods, services, facilities, advantages, privileges, and accommodation of places of public accommodation.
School – personnel may change curriculum, materials, or architecture to meet the needs of a disabled student.
