My kid is a adult, now what?

To deny people their human rights is to challenge their very humanity. Nelson Mandela
Today my daughter and I went to vote. I love it when she does things that other adults do. So far she has graduated from High School, has a job, and is registered to vote. However, with those accomplishments also come lots of fears on my part. Now she can sign contracts, she can move out of the house if she wants to, she can do all things that adult do and her father and I will have no say so in what happens. Fortunately there is a way to help us help her not get into trouble she is not ready to face on her own.

What is Adult Guardianship?

There is a legal process called guardianship or conservatorship depending on where you live.  A guardianship is a legal tool that lets one person (in this case the parents) to make decision for an adult who becomes or is unable to make such decisions for him or herself.  In this case our own young adult who will be known as the ward. Courts are the ones that are in charge with establishing guardianship and at the same time maintain oversight to reduce the risk of exploitation or abuse to the ward. This means you must go to court and petition/ask them to appoint you as the guardian

So there are different forms of guardianship

  • Of the person – the decisions are limited to those affecting the person or individual with disabilities
  • Of the Estate – the guardian is responsible for managing the estate of the individual with disabilities. Usually when the person with a disability has significant assets.
  • Of the person and Estate or
  • Limited Guardian of the Person, Estate or both – in these cases the individual with disabilities is allowed to retain some capacity of rational decision-making.

In the case of some of our children with disabilities they may be unable to make medical, financial or long-term plans decisions like living arrangements for themselves, this is where having a guardianship becomes a powerful tool.

I have always wanted my daughter to do as much as she could as independent as possible. When I looked into guardianship I was happy to see that Guardianship (in some states) can be limited so I can still give my daughter as much independence, dignity and self-reliance as she needs while still being able to look out for her best interests.

How do I establish Guardianship?

Like I said before, the process is determined by the courts, and the process and laws are governed by the laws of each state. Here are the main steps an individual seeking guardianship needs to take:

  • File a petition for guardianship of the person with a disability and asking the court to appoint them as the guardian
  • Arrange for personal service of petition, the Rights of Respondent and a summons on the Respondent. Check with the court and find out where and who does this paperwork and when it has to be filed. This process must  be completed before the hearing date.
  • Provide notice by mail to the respondent’s nearest relatives and
  • Obtain a medical report from a licensed physician detailing the reason guardianship in necessary.

One the petition is filed, the court may appoint a person to ensure that the rights or the person with a disability , this person is the Guardian ad Litem.  The Guardian ad Litem will perform an independent investigation and reports their findings back to the court.  Once all the requirements are completed, a hearing is held and the evidence is presented, and the court makes their ruling.

Who Pays for the Guardianship?

Usually the person petitioning for guardianship pays the cost of the process. If the ward has an estate then the costs may paid for by the ward’s estate.

Things to take into account

  • This process will take anywhere from thirty to ninety days from the time you start.
  • You want to start the process before the young adult reaches the Age of Majority.
  • The rules followed in court will be the rules of the state where the individual/ward resides
  • Reasons for considering Guardianship – living arrangements, educational services, medical needs, financial issues.
  • Does not transfer from state to state
  • Courts might ask to review the guardianship.
  • The guardian is responsible for making sure the paperwork remains current

Whether you chose to establish guardianship for your young adult with a disability is up to you and your family.

Disclaimer : I want to remind you that I am a  non-attorney, advocate. Therefore, the contents of this blog, in its entirety,  and should not be construed as legal advice, but, rather the opinion of the author.


Resources

 

Luz Adriana

My name is Luz Adriana Martinez and for the past 27 years I have been working in the field of advocacy for children with disabilities. I hold an MBA from the University of Phoenix and a BA from the Inter-American University of Puerto Rico.

I’m married to a great guy, Tito, an Army Veteran of 22 years, who supports all the crazy things I do. Being an Army wife also prepared us to be always on the move and without daddy for long periods of time. This also gave me the opportunity work and volunteer with organizations whose mission was to assist other military families. This blog results from my desire to give back to the many families that have given me and mine so much. I have had the fortune to be able to travel the world assisting military families and now that that stage of my life is over, I want to continue to share what I have learned in the hopes that I can still provide some information and resources to families who need it.

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