As a follow up to my blog article from last week, Guardianship is an important legal protection for adults with special needs. As your family member with special needs approaches his or her 18th birthday, you should consider taking action that will legally appoint you as his or her guardian. By doing this, you’ll be able to act on his or her behalf when making important decisions regarding education, medical treatment, and financial matters.
If your loved one has a special need that limits his or her ability to make informed and well-reasoned decisions, emancipation can make it difficult for you to care for him or her appropriately. Consider a relative who requires a life-saving operation. If he or she is not able to fully understand the urgency of an operation, he or she may decide to forego the procedure and put his or her life at risk. Without Guardianship, you will not be able to make that potentially life-saving decision on his or her behalf.
Courts consider Guardianship requests seriously, as you are asking the Court to remove the adult rights from an individual. An attorney specializing in Guardianships can help you navigate this intricate process that requires filing a Guardianship Complaint with the court, as well as filing certifications in support of Guardianship from two physicians, or one physician and a licensed psychologist. Having an attorney involved helps ensure well-substantiated and timely submissions to the Court, interaction with the court-appointed attorney to help explain the necessity of Guardianship, and submission of all other required paperwork.
Reasons to Consider Guardianship:
- Education: School districts must consider an individual who has turned 18 to be independent and able to make his or her own decisions. Because many special needs children are entitled to educational services through June of the year in which he or she turns 21, a parent without Guardianship may be excluded from IEP meetings and unable to make educational decisions on his or her behalf. Through Guardianship, you can ensure that your participation in planning for his or her developmental needs, including education and training, is secure.
- Healthcare: For individuals with disabilities, the ability to make “informed” medical decisions may be compromised. Since doctors and other healthcare providers need to protect an individual’s privacy, they are restricted from discussing that individual’s medical care with anyone, including family members, without his or her consent. This becomes problematic for a special needs family member who may not be competent to consent to medical treatments or to the disclosure of medical information to third parties. Guardianship will help you look out for his or her best interests and protect him or her from harm.
- Finances: As an adult, a person with a disability can enter into contracts and therefore obligate themselves financially. However, individuals with disabilities may not be competent to enter contracts or make other decisions regarding financial matters. For their protection, Guardianship restricts the ability of individuals with disabilities to enter into legally enforceable contracts and can void any contracts they may enter.
Kevin Pent, ChSNC® Chartered Special Needs Consultant® can be reached at kevin@ewmginc.com