Guardianship Varies by State

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.



  1. mildred e. johnson November 17, 2017 at 5:59 am

    my son is schizophrenic since 16 years old.he has been
    in and out of mental hospitals;group homes;etc.he is
    53 years old.he was just released from state hospital.
    i had him on my record at v.a. hospital;but he did not
    receive disabled adult child benefits until 2005;by the judge;seatte.the head the state hospital
    sent his diagnosis to the opm office;and my copy states
    he is incapable to take care of himself.he is in a grp.
    home since 7/17;but they try to force him to sign papers;
    etc;he does not understand.i had the court appoint him
    a guardian;after i filled out papers with the help of
    the court laison in 2016.he was denied help to have a
    guardian;and the state sent me a message back;tghat
    the public guardian office has no funds in several
    years.(2016)i am getting up in age;and would like an
    to help my son get into a residential place for persons
    who the doctors state is incapable to care for himself.
    the group home keeps calling me;to try to get my son
    to sign papers.i do not drive a car;and because it
    is getting later in the day time;i would not want to risk
    a trip brother and his wife;both are in their
    80’s;and live in the seattle area;but are disabled.
    his twin brother is bi-polar;lives in his own apt;but he
    is also on ss disability;and is bi-polar. please send any information about any residential place;besides a
    group home in seattle son;who is schizophrenic
    told the social worker;prior to his discharge from the
    state hospital in 7/17;he did not want to live in seattle
    area.he is now in the group home in auburn,wash-
    ington;since 7/17my daughter;who lives back east
    came to portland after my son was placed in the group
    home;and rented a car;and took me and his twin to visit him. his room is cramped;with beds too close;and the staff seems to have a system that is not cooperative with
    each other.i am waiting for the opm office;since august
    2017;when the state hospital doctor;sent them papers
    stating my son was not capable to care for himself.the
    group home is trying to put him on a schedule to teach
    him how to care for himself;that the doctor he cannot do.
    i had contacted the opm offfice because;my son was
    in seattle sinc e the 1980’s;when my mother was still
    alive.i came out here years later;because i was still
    employed by the n.y.c. v.a.. i told the opm office that
    i feel that my son should be allowed disabled adult child
    benefits;from the time i placed him on my work record;
    but because i came out here later;with the help of
    a seattle lawyer;he was just placed on the disabled
    adult child benefits.years ago;he was placed in the
    same group home;and when he got the disabled adult
    child benefits;a worker in the group home at that time alerted me that the dept.of social services took some
    of the retroactive money. i wrote to the social security
    regional office(still have my letter);and they called my
    other son into their office;(dept.of social services)and
    had him call me’stating they were going to put the
    retroactive money back;but i still have no way of
    knowing. i think there should be someone who can look after my son’s best interest.thank you for any help and
    information.all statements can be proven by papers
    i saved from the lawyers;(court appointed by the court
    for guardianship;that failed;the administrative law judge’s
    decision in 2005;and the attorney who got my son
    the proof he needed disabled adult child benefits.
    thank you for any help,and information,

  2. mildred e. johnson November 17, 2017 at 6:20 am

    to who it may concern;
    i cannot understand why in 2016;after the court appointed an attorney;who visited my son in the hospital;
    after visiting him.(she also was in contact with me;by
    letters;mostly);then stated my son was not eligible to
    have a guardian appointed.i thought his disabled adult
    child benefits;appointed by administrative law judge in
    2005;should be sufficient.i was also dissappointed
    that the administrative office of the court;(contacted them
    by phone);did not have money;they stated for several
    years.i contacted;;who
    is the head of the office of the public guardian;ofice of
    elders & guardianship services;1112 quince st.s.e.bldg.1;
    p.o. box 41170;olympia,wa.98504-1170;360-956-5302.
    thank you.please excuse all mistakes.mildred e. johnson

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