As a parent, you are responsible for caring for your child in all areas of their lives. Making sure they go to school, eat their veggies, have a place to live, and have clothes to wear are just a few of the many responsibilities you have as a parent. Your right to do these things for your child is inherent in being a parent in our State. You do not need to seek these rights out from a court- you have them as a natural occurrence of your being a parent and living in our State.
However, once your child reaches the age of 18, these rights all go away. You no longer have the right to make decisions for your child, nor do you have the duty to provide a minimum level of care for them. The law at that point gives your child (who is no longer a legal child) the right to make decisions for him or herself in this regard.
The question that I would pose to parents in your position is whether or not you know how to help your child after their 18th birthday if they are not in a situation where they can meet their daily needs and make decisions to help care for themselves. I would like to allow any of you to read this by providing information about attaining guardianship for your young adult child with a disability.
You have options to help your disabled child after they turn 18
A good thing for you is that there aren't just one or two options available to you when it comes to helping your child with daily decision-making and financial survival. You can have power of attorney regarding your child and other, more limited abilities to help your child. You can view these as taking measures that would not be as time-consuming or controlling as guardianship. However, if you still view custody as appropriate in your situation, you have come to the right place. We will discuss the guardianship process during the remainder of this blog post.
So what does guardianship mean, anyway?
Guardianship of a person (a child or adult) is when an adult involved in the person's life is given the responsibilities of caring and decision-making regarding aspects of that person's life. You, as a guardian, can protect and look after your ward (the person whom you have the guardianship over) because the person is not able to do so themselves.
A court must determine that the person is incapacitated and unable to manage specific areas of their life. This is a necessary precursor to your being named as a guardian. Remember that the term "incapacitated" may mean different things in different contexts. Your child may be physically able to perform various tasks for him or herself but may lack mental talent and proficiency. Or the opposite may be true.
From the court's perspective, the end goal of guardianship is to be the least intrusive as is possible into their lives. Independence and self-sufficiency maybe two words that you do not associate with your child at the moment. Still, your ultimate goal of yours should be to allow your child to thrive and live on their own as much as possible- even if that leaves you a little apprehensive right now.
Taking away your child's rights and giving them to you is something that a court will not do unless necessary. As I mentioned earlier, there are alternatives to guardianship that can be explored, and it is wise to do so before jumping headfirst into a guardianship case. We will discuss those options in greater detail in the coming days. Another factor that a court will consider is who your child wants to be, their guardian, if anyone. Finally, the overarching goal of the court will be to determine what is in your child's best interest and what will help achieve that goal.
The legal process behind becoming a guardianship of your disabled child
While your particular situation may wind up looking a little different than what I am describing below, for the most part, you can expect your guardianship case to look pretty similar to the following outline.
A guardianship case is not straightforward to work on. It would help if you met with attorneys to learn more about the process and eventually hire one to help guide you through the case. Some rules and procedures are unfamiliar to all family or probate law cases you will need to learn and operate under in a guardianship case. You will want to ask the attorneys that you meet with how many guardianship cases they have worked on and what their fees are to represent you.
I should note that the attorneys with the Law Office of Bryan Fagan, PLLC offer free of charge consultations six days a week. One of our licensed family law attorneys will gladly meet with you to discuss your situation and talk with you about how our office is equipped to help you and your child achieve success.
A form will need to be filled out by your child's physician to describe the sort of areas that your child needs assistance and supervision. Can your child feed him or herself, make decisions on financial matters, or drive a vehicle? If not, these are the sort of limitations that the physician should make a note of. Depending on the type of disabilities your child suffers from, you may need to request multiple doctors complete the form.
Filing a guardianship petition and having an attorney ad litem appointed to your case
With this information in hand, your attorney will need to file a petition for guardianship with the district clerk for your county. A judge will be assigned to your case, at which time an attorney ad litem will also be appointed to represent your child's interests. You may be thinking- I thought that I expressed my child's interests. On one level, you are correct. But it could be determined that this application is not in your child's best interests. The attorney ad litem will work independently of your interests to look solely at the interests of your child.
Part of the attorney ad litem's responsibilities is to act as the eyes and ears of the judge outside of their courtroom. Whether or not guardianship is necessary at all or if other stop-gap measures are not as intrusive that could be just as successful will be examined as well. The ad litem attorney will speak to your child (if they can speak) to learn where their strengths and deficits lay. Their opinion is essential, and the ad litem attorney will ask for it.
The attorney ad litem's work will merge into a report submitted to your attorney and the judge. The information will contain a written statement of their findings and their opinion on whether or not guardianship is justified or necessary. The data will be a piece of evidence that the judge uses to determine whether or not guardianship should be granted. A letter of custody will be printed out and given to you that can be provided to doctors, health insurance providers, banks, or other entities where it is needed.
More on guardianships as well as its alternatives- tomorrow's blog post topics
We will continue to discuss guardianships related to disabled adult children in tomorrow's blog. Once that topic is wrapped up, we will transition into a discussion on the alternatives available to you as a parent of a disabled adult child.
If you have any questions about what you've read today, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys.