By Shirley B. Whitenack, Esq.

Regardless of the severity of an individual’s cognitive impairment, that individual is presumed to be a competent adult at the age of 18. If the person will be unable to make important choices, the naming of one or more guardians should be considered. A guardian is a court appointee who is authorized to make decisions for a “ward.”

On the other hand, there are high-functioning individuals with developmental disabilities or mental illness who are not appropriate candidates for guardianship. They may be able to work, determine where they wish to live, vote, even get married–yet they may need assistance with medical and legal decision-making. For them, a health care proxy and power of attorney are good alternatives. It’s essential that parents begin thinking about these options when a child with disabilities turns 17.

Because guardianship is governed by state law, incapacity guidelines, application processes and defined responsibilities differ somewhat across the U.S. In some states, it’s referred to as “conservatorship.” Depending on the state and individual circumstances, the process can take several weeks or months to complete. Full guardianship typically involves responsibility for making decisions regarding basic needs, personal property, finances and medical treatment. In many states, though, limited guardianship is also recognized, based upon the ward’s capabilities. In such cases, the court will stipulate which decisions a guardian should handle.

If the guardianship applicant is represented by an attorney, then the alleged incapacitated person generally is represented by another attorney or an individual known as an “ad litem,” who protects the “best interests” of the alleged incapacitated person. Many states stipulate that affidavits or reports from physicians, psychiatrists, therapists and educators be provided to support the guardianship petition.

If a petition for guardianship is contested, the process becomes both time-consuming and expensive. Mediation, an option in many jurisdictions, typically is less costly. There may be some mediation programs, staffed by volunteers, for which there is no fee.

Guardianship is a serious responsibility that should not be considered inconsistent with self-determination. While an individual with disabilities may require assistance handling certain complex decisions, that person’s preferences and values should always be respected by the guardian.

About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.

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