Guardianship for Disabled Adults
Individuals with developmental disabilities who cannot make crucial decisions or care for themselves in adulthood can benefit from a guardianship. The court is responsible for appointing a guardian who will make important personal and financial decisions on behalf of the individual lacking the capacity to make those decisions themselves. Therefore, guardianship for disabled adults is an important component of elder law.
In a guardianship, the court will refer to the adult with the disability as a protected person or ward. The court focuses on the individual’s best interests. It may limit the authority of the guardian to only those areas where the individual can’tmake decisions.
Transitioning from High School to Adulthood
When parental guardianship ceases at age 18, legal documents must be put in place to permit actions on behalf of adult children. Still, it’s the court’s responsibility to legally appoint the guardian. Courts mainly look to parents, older siblings, or sometimes outside interested parties for the role. If none exist, a professional guardian or conservator for hire is the next option.
Many students with special needs (intellectual and developmental disabilities) shift to guardianship via high school transition planning. The Individuals with Disabilities Education Act (IDEA) of 1990 says students leaving high school must work with schools and their parent or guardian during the transition when rights transfer to the student as a legal adult.
Who Will Be the Guardian?
School officials may recommend that parents become legal guardians of their adult children to aid them in navigating life. However, before granting full guardianship, courts must consider other alternatives such as limited guardianships or supported decision-making. These options, though less restrictive, are often overlooked in favor of full guardianship.
Special Considerations
This transition requires planning and considerable thought to the following questions:
Is it necessary to have full guardianship? Or, can other options that are less restrictive, like the following, be used instead?
Special Needs Trust
Family Guidance
Assistive or Supported Living Services
Durable Power of Attorney
Financial Representative
Limited Conservatorship
Limited Guardianship
Temporary Guardian
Successor Guardian
Who should be nominated as the ideal candidate for the position of guardian?
How does one go about obtaining guardianship through the court?
Is there sufficient medical evidence from physicians defining the individual’s capacity?
What are the power and duties of a guardian?
How Does a Disability or Special Needs Attorney Help?
A disability attorney or a special needs attorney can assist with setting up guardianship by advising on needs due to the individual’s circumstances and helping determine if a legal arrangement is required. They can prepare the necessary paperwork and file the petition with the court, initiating the guardianship process.
How Elder Lawyers Can Help
Elder law lawyers may also focus on representing individuals with special needs and their families throughout the process, including attending hearings and communicating with the court. Navigating the legal process can be complex and vary by state. An elder law, disability, or special needs attorney will take all necessary steps and meet all deadlines throughout the legal process.
It's crucial for an individual's rights to be safeguarded and best interests to be presented in court, and this is where a lawyer can play a vital role. The lawyer can extend continuous support and advice to the guardian or conservator to ensure that the arrangement consistently caters to the individual's requirements.
If there are adjustments to be made, a disability or special needs attorney can determine if these actions require court oversight or formal legal changes.
Functions of a Guardian
The functions of a guardian for an adult with developmental disabilities may vary depending on the individual’s needs and the terms of the legal arrangement. Responsibilities may include:
Making Personal Decisions – A guardian may determine where they live, what medical treatments they receive, and other daily living needs.
Managing Finances – A guardian may manage finances, including paying bills, managing investments, and ensuring their financial needs.
Representing the Individual – A guardian may manage legal or financial matters. Usually, an attorney will advise the guardian or conservator and sometimes represent their position to the court.
Coordinating Care – The guardian may coordinate health care, ensuring they receive the support they need.
Advocating for the Individual – The guardian may advocate to ensure rights and interests are protected.
The specific responsibilities of a guardian will depend on the terms outlined in the legal arrangement for the person with special needs. Choosing these participants with care is important as they carry great responsibility.
Federal Programs, and Guardianship
It is the responsibility of guardians to uphold the federal, state, and local program eligibility of individuals with developmental disabilities. They may have to engage with these programs through various avenues:
Applying for Benefits – A guardian can assist with the application process for federal programs such as Social Security Disability Insurance (SSDI) or Supplemental Security Income(SSI), which provide financial support.
Managing Benefits – The guardian may be responsible for managing government benefits within program guidelines.
Coordinating with Other Programs – The guardian may also need to coordinate with other federal programs, such as Medicaid or Medicare, to ensure additional support.
Representing the Individual – The guardian may represent or retain an elder law, disability, or special needs attorney for interactions with federal agencies in case of any benefitdisputes.
Conclusion
Legal procedures known as guardianship and conservatorship can be advantageous for those who have developmental disabilities. The court collaborates with the family to select the ideal individual for the position. In an effort to promote more independence for the special needs individual, the authority of the guardian or conservator may be restricted, and reviews of the arrangements may be conducted on a yearly basis using reports submitted by the guardian or conservator.
The process for obtaining guardianship can vary by state, and seeking the assistance of a disability or special needs lawyer ensures following all necessary steps. The guardian must understand their duties and responsibilities, specific requirements, and limitations. Having an attorney assist in the process can provide peace of mind that a loved one has everything they need to succeed for a lifetime.
Contact Us
If you or your loved one needs help with establishing guardianship for your adult loved one, please contact us. As a child of a disabled parent, The Happy Lawyer understands the issues involved.
