If you have any questions regarding guardianship, this article will guide you.
What is guardianship?
Guardianship should be considered in two scenarios:
1. When parents die
2. As long as the parents are still alive
First scenario: when the parents die
Consider the scenario where the parents die while the child still needs someone to care for him. This person is considered a tutor. Choosing a guardian can be difficult for many parents, and if it is for you, you are not alone.
A Special Needs Plan has developed a guardian selection tool to help parents make this decision. Once you do, you will need to include this information in your will. A will is a legal document that informs the court system of your wishes, including who you want to legally make choices for your child.
Second scenario: when the parents are still alive
The second type of guardianship is when your child turns 18. At 18, he becomes a legal adult, which means all of his decisions are his and he is legally responsible for those decisions. This includes decisions about money, decisions about education, and decisions about health care.
If your child needs help making and understanding the impact of these decisions, you may want to proceed with guardianship and begin this process before your child turns 17.5 years old.
One of the experts on our team, herself the mother of a disabled adult, asks all parents a simple question when discussing the need for guardianship: “What is the intellectual or developmental age of your child?” your child? She goes on to explain that if your answer is 14 or 15 or 9 or 3, then your next question should be, “Would you allow your 9 year old to make decisions about their own health care, get a card?” credit, enter into a binding contract or conduct their own IEP? If your answer to this question is “Of course not,” then you may want to consider becoming your child’s guardian when he turns 18, so that you can legally retain a parenting role.
Guardianship does not have to be eternal. You can become your child’s guardian at the age of 18, and if they have the capacity to make their own decisions by the age of 30, you can ask the court to cancel the guardianship.
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I have heard that there are different levels of guardianship, is that true?
In short, yes. You can apply for different types of guardianship. You can apply for general guardianship, which means that you will be considered the guardian of the estate (which is their money) and the guardian of the person (day-to-day decisions).
You can also simply apply for guardianship of the estate or just guardianship of the person. You can even apply for limited guardianship. Wow all of a sudden this decision gets more complicated but let’s dig deep and figure out the reason behind each guy.
General Guardian is used when a person does not have the capacity to make decisions about their own care and money. It is rare that this type of guardianship is used for people with disabilities as most of the time they intentionally do not have money in their own name to qualify for government benefits.
Does a person with a disability rarely need a general guardian or an estate guardian because they do not have an estate? However, they often need an in-person tutor to help them make decisions about health care choices, housing decisions, and other day-to-day living options.
Limited guardianship is used when parents wish to preserve specific options for their children. One of the most discussed options is the ability to drive a car and obtain a driver’s license. If driving a car is an option you want your child to have, then you need to “carve” that option out of the guardianship. You can still be the guardian of your adult child and preserve their right to a driver’s license, you just need to be deliberate and communicate this throughout the guardianship process.
In our next issue, we’ll discuss whether you should hire a lawyer to help you with guardianship and alternatives to guardianship.
This article was featured in Number 124 – Autism around the world
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