For parents of disabled or autistic children, the coming of an 18th birthday is the time when hard decisions need to be made. In NY, age 18 is the age in which an individual is legally able to act on their own. What should you if your child does not have the intellectual or emotional ability to be fully independent and be responsible for their own life decisions? You could elect to become your child’s legal guardian. A legal guardianship allows parents to continue to make important decisions for their child, but it does also severely limit the child’s rights and freedoms. State laws, including NY’s, often require that less restrictive alternatives be considered before a guardianship is ordered.
Securing the appointment of a guardian for an adult requires a court proceeding to appoint another person to make decisions about a person’s health, safety, support, care and residence. The process generally starts with an interested party filing a petition, with the court stating why guardianship for the person, known as the “ward,” is necessary. The person who has filed for guardianship and others, including parents, spouses, or relatives, all receive a notice of the hearing and a copy of the petition. An independent evaluator assesses the ward and reports on their capacity. The guardianship judge will conduct a hearing in which the court determines whether guardianship is needed. The ward has the right to hire counsel, or the court can provide counsel.
Once the guardian is appointed, the court may limit or completely terminate the ward’s ability to make decisions regarding medical treatment, where they live and other important decisions including their access to their income resources. The guardian is required to make decisions that are always in the best interest of their ward and to encourage the ward to participate in decisions. An annual report must be filed with the court to advise the court of the ward’s status and well-being and an account for money spent.
Most states have a law known as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which makes it easier for states to transfer guardianship from one state to another, if the person moves.
Guardianship is an emotional decision for parents to make. They want their child to be protected, at the same time they hope their child can reach a certain level of independence, within the limits of their capacity. Parents can be appointed as the 18 year old’s guardian, or another family member.
An individual facing a guardianship petition has the right to an attorney and in some states, that attorney must advocate for the best interest of the person, which may be to have more independence than the petition suggests. The court will determine what is best and what the least restricting plan is.
A case involving a young woman with Down’s syndrome named Jenny Hatch in 2013 led to changes in guardianship proceedings. Jenny was a high school graduate, worked at a thrift shop and volunteered in local political campaigns. At her parent’s request, a court put her into temporary guardianship and placed her in a group home, where her cell phone and laptop were taken away. She was not permitted to socialize with friends or go to work. After a year of litigation, she won the right to make her own decisions through Supported Decision-Making, a process in which a team of allies help the disabled to make key decisions about their life. Jenny became a national hero for the rights of the disabled and speaks publicly about her experience. A number of states now have Supported Decision-Making laws to give the persons with disability some levels of freedom, while providing them with a network of support to help them make their choices.
There is a lot of information to consider as a parent facing the prospect of a disabled or autistic child becoming a “legal” adult. Each person has his or her own strengths and challenges. Make an appointment today to meet with our special needs attorney who can advise you on developing a guardianship option that both provides your child as well as allows the new adult participate in some level of decision making which acknowledges their capacity and their abilities.
Reference: Autism Key.com (July 28, 2020) “Guardianship And Autism: A Crossroads In Life”
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