New Horizons Un-Limited Inc.
Guardianship for Your Young Adult Child with Disabilities
February 29, 2012
The following is a brief discussion of guardianship as it applies to your young adult child with disabilities during his or her transition to young adulthood. This information is provided to the parent and discusses what is involved when petitioning for guardianship, what rights an individual young adult child with disabilities would be asked to give up if you as parent or guardian adult gain guardianship, the process of petitioning the court, and the responsibilities of the guardian.
Warning! These materials are for general information only and do not constitute legal advice. This guide is not a replacement for a good attorney who has a background in guardianship in your local city and state.
This guide applies to adults (children with disabilities as they turn 18 years of age) and is not intended to encompass custody and guardianship issues for minors. The purpose of this guide is to provide information for people with disabilities who are 17 to 59 years of age and their parents and guardians, and does not necessarily offer information specifically for other groups.
Important! There is much to consider before creating a guardianship.
A person with a disability may be able to make sound decisions if presented with training, education and informed choices. The ability to make one's own choices allows the person to learn, grow and keep one's self-esteem.
On the other hand the young adult child may need an advocate to avoid exploitation or abuse.
New Horizons Un-Limited hopes that the options presented in this guide will help you to make informed decisions about guardianship.
This guide offers some basic information on what you need to know. For more information, check out our guardianship pages at:
New Horizons Un-Limited assumes no responsibility in guaranteeing the services, programs or conditions as described. If you are interested in a resource listed below, call or contact the resource to verify the current situation. Evaluate information and make your own decisions when using this guide.
Following is a quick outline of this guide, click on the link to go directly to the section of your choice.
What is Guardianship?
- A guardian is a person appointed by the court to manage the income and assets and/or to provide for the essential health and safety and personal needs of a minor, an individual found incompetent or a spendthrift.
- This guide applies to adults (children with disabilities) as they turn 18 years old) and is not intended to encompass all custody and guardianship issues for minors.
- The purpose of this guide is to provide information for people with disabilities who are 17 to 59 years of age and their parents and guardians.
- A person for whom a guardian is appointed is referred to as a “ward.”
- When a person turns 18 their parent is no longer able to make decisions for them whether they are disabled or not.
- If you are a parent of a young adult child with a disability for whom you want to petition the court for guardianship, you will want to understand the guardianship process in advance of your child turning 18.
- Before the court will appoint a guardian for a person who is 18 years old or over, the ward must be a person who is unable to effectively communicate or provide for themselves.
- If your son or daughter will require a guardian, you must appeal to the court for guardianship when your child is 17 and 9 months. You cannot file before this age as the court will want current information.
- Make plans for guardianship when your child is 17 and 3 months so you are ready to make the appeal at the appropriate time.
The Laws for Guardianship
There is no federal law concerning Guardianship. Guardianship is governed by state law and each of the states of the United States has different laws governing guardianship.
Wisconsin Statute 54, Subchapter II, "Appointment of a Guardian," contains all of the procedures, standards, and required findings for appointing a guardian of an adult. It retains the current law's requirement of clear and convincing evidence. Important to many parents of young adults with developmental disabilities, subchapter II authorizes the appointment of a guardian for an individual as early as age 17 years and 9 months, thereby permitting parents to prepare for their child's transition into adult legal status.
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Factors to Consider Regarding Guardianship
If you are considering guardianship for your special needs son or daughter there are several factors to take into consideration:
- Just because an adult child may not make good decisions is not the same as being “unable to make” decisions. The adult child (ward) must be found incompetent (in some states incapacitated) or a spendthrift, unable to communicate or provide for their physical health and safety.
- Do not enter into guardianship lightly. The court must appoint guardianship. This is a process and it is very expensive (unless you qualify for legal aid).
- The parent should evaluate what kinds of decisions the adult child is unable to make and those kinds of decisions the adult child can make, review and evaluate your adult child for each of the rights you are asking them to give up. For instance: an adult child may need a guardian to be protected from exploitation, but they may be able to make decisions about voting.
- Types of guardian are Guardian of a Person or Guardian of a Person’s Estate:
- Guardian of a person - health, job, travel, where to live.
- Guardian of a person’s estate – financial, pay bills, social security
- The guardian’s authority depends on which powers the court grants to the guardian.
- The court will appoint guardianship for only those rights and powers that the ward is not competent. The court will be interested in protecting the ward’s individual rights, independence and opportunity to learn and grow.
- As a parent you will be taking away the rights and independence of your son or daughter student (ward). This could be very difficult for the student. The student will need to be present at the hearing or this could be waived. Perhaps guardianship is not necessary. There are other legal avenues to assist your son or daughter so they would not have to give up their rights. There are limited guardianships, health and financial power of attorney, joint checking accounts or dual signature checking accounts, appointment of representative payee or conservatorship, etc.
- The guardianship process can be very difficult for the guardian as well. The Court will need proof that a person will be a good guardian.
- It is considered a good idea to appoint a standby guardian who will serve as the successor guardian if the guardian at any time cannot continue to serve as guardian. It will be more difficult to appoint a successor later.
- If it is not clear whether an individual is incompetent, a doctor or psychologist may not agree to complete the written report to the court giving an opinion.
- When a guardian is appointed the ward may give up certain rights, but the following are rights that the guardian can never assume for the ward: right to sign a will, vote, serve on a jury, get married, obtain other licenses, be sterilized, or donate bone marrow, etc.
How to Petition for Guardianship
- Contact a doctor or licensed psychologist to ask if they will complete the written report regarding the condition of the ward. The actual report should be made when the ward is 17 years and 6 months or 17 years and 9 months.
- Contact an attorney when the ward is 17 years and 6 months.
- Get the petition forms online and “petition the court."
- The court will appoint a “guardian ad litem” who will interview the ward, the guardian and report to the court.
- The ward has a right to an attorney.
- The petitioner serves notice of the proceedings to all interested persons including the ward.
- Guardians and standby guardians must file Statement of Acts and Consent to Serve.
- The hearing will take place. If the guardian is appointed, Letters of Guardianship are signed by the court and given to the guardian. These letters give the guardian the authority to act on behalf of the ward.
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- A guardian must exercise only those powers granted to the guardian by the court.
- The guardian must file an annual report each year.
Financial Assistance for Guardianship Legal Fees
You may be eligible for reduced fee or pro bono legal assistance.
Contact your school system, children’s hospital, legal aid society, bar association, or aging coalition for information on guardianship financial assistance for legal fees.
If you cannot afford an attorney's legal services, you should still
obtain a consultation with an attorney familiar with guardianship. It is possible that an attorney can refer you to a legal aid society or non-profit foundation that can assist you in filing guardianship papers at a nominal costs.
The Guardianship Assistance Project’s purpose is to assist caregivers of persons between 17 years 9 months and 22 years of age with severe intellectual or emotional disabilities to become their legal guardians. GAP assists by providing free or reduced cost case management and legal representation in Milwaukee County Probate Court. Contact Julie Turkoske, GAP Coordinator at 414.266.3188 or firstname.lastname@example.org for more information.
Alternatives to guardianship:
Alternatives to guardianship include:
- Representative Payee
- Joint Bank Account
- Trust Account
For more information:
What Are The Usage with Disabled Individuals by Laws.com.
Washington State Department of Social and Health Services: Guardianship Basics - Frequently Asked Questions
Guardianship from Traumatic Brain Injury
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These materials are for general information only and do not constitute legal advice.
If you have questions or ideas, information and solutions that you would like to
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© Copyright 2012 New Horizons Un-Limited Inc.
[Updated February 29, 2012]
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