The process of planning for a child with a disability is complex and can be difficult in many respects.
A major issue is the question of to what extent the child is or will be capable of making independent decisions.
The law presumes that individuals who have reached the age of 18 are competent to make their own decisions. The guardianship proceeding is a process by which this legal presumption can be overcome; i.e., an individual can be declared legally incompetent and the authority to act on his or her behalf can be granted to a competent adult.
There are a variety of tools available to help with addressing this issue, including different forms of guardianship, trusts, and powers of attorney. In considering these and other options, careful thought must be given to the characteristics of each.
What are some factors to consider in selecting an advocate for your loved one?
The factors involved in selecting an advocate include but are not limited to the availability of the advocate to the child in both everyday and emergency situations, the ability to serve as advocate for an extended period of time, the ability to deal effectively with financial and legal matters and to obtain the help of professionals when necessary, the absence of any personal or financial conflict of interest, and the simple quality of common sense.
What are the different types of guardians?
If a person with a disability needs a guardian and there is not friend or family member willing or able to serve capably, a court can appoint a public guardian. Such a guardian can be a public agency, or in some cases a public official. A public guardian would likely be a guardian of last resort. Below are the different types of guardians and examples of some of their roles and responsibilities:
- Guardian of the person – A guardian of the person is responsible for the personal welfare of the individual with a disability.
- Such a guardian’s responsibilities include decisions regarding the individual’s housing, medical care, education, food, clothing, leisure activities, etc.
- Keep in mind, the guardian’s authority will typically not extend to decisions such as the drafting of a will or extraordinary medical procedures such as experimental treatment or sterilization.
- Guardian of the estate – A guardian of the estate is appointed to invest, manage, and protect the property of the ward.
- The guardian is required to use assets only for the benefit of the ward, and not for his or her own profit. Such a guardian is not permitted to commingle his or her own assets with the property or money of the ward.
- Plenary Guardian – A plenary guardian is both a guardian of the person and a guardian of the estate.
Let me know if you would like more information by either a workshop or one on one basis to review further