Legal Talk

When a student turns 18 all rights given to the parents under federal and state law transfers to the student. This transfer of rights means that the student may access his//her education records, make his/her own educational decisions, and sign consent for evaluations and placement. In some situations, young adults may need additional support in making educational and life decisions. In that case, there are options that the parent/guardian can explore ranging from guardianship to Supported Decision making Agreements. Guardianship can be very restrictive and take away many rights. Supported Decision Making Agreements are another option that is very flexible, allowing the individual to make life decisions while still maintaining parent/guardian involvement.

A guardian is someone appointed by a court who is responsible for the personal affairs of an incapacitated person, called a “ward” and making decisions for that ward. Guardianship may be awarded to make decisions, such as educational, medical, employment or it may be a full guardianship covering all personal affairs. A judge determines whether the individual has a physical or mental condition that prevents him/her from managing financial affairs, caring for physical health, or providing food, clothing or shelter. Guardianship limits the freedom of choice, self-determination, decision-making, and independence and is difficult to reverse. Guardianship can be an expensive process because both the parent and individual with a disability have legal representation and there are court costs. A guardian can be appointed any time after age 18 and does not have to be a parent. Guardians have reporting and training responsibilities especially when there is an estate. Over time, the individual who serves as a guardian may be changed with the approval of the court. If the person’s ability to care for themselves and make decisions improves, the guardianship can be ended and removed.

How to Obtain Guardianship

The person seeking to become guardian is the “applicant” and along with an attorney provides the judge an application stating the reasons he or she believes that guardianship is necessary.

A physician must provide an opinion by completing a physician’s certificate of medical examination (CME) indicating the individual is unable to make decisions independently or with support.

Attorney ad litem is appointed to represent the desires of the person with a disability.

A court hearing is held, and the judge has the ultimate authority to decide whether or not someone needs a guardian and if the guardianship should be full or limited. The judge determines who should be the guardian.

The court must consider alternatives to guardianship and supports and services before a guardianship is created. The court must find by clear and convincing evidence that alternatives to guardianship and supports and services have been considered and determined not to be feasible.

Types of Guardianship

The guardian of the person is responsible for the physical well-being of the person under guardianship. Their responsibilities may include:

• the right to make educational decisions

• the right to have physical possession of you and determine living arrangements

• the duty to provide care, supervision, and protection, and to provide the person with clothing, food, medical care and shelter

• the authority to commit the person for medical, psychiatric and surgical treatment (not include the authority to commit to an inpatient psychiatric facility)

• the authority to oversee a financial trust

• the authority to sign documents necessary or appropriate to facilitate employment

The guardian of the estate is responsible for the person’s property and assets. When managing an estate, a guardian has the following authorities:

• possess and manage property

• collect all debts, rentals, or claims

• enforce all obligations in favor of you

• bring and defend lawsuits by or against the ward

• have digital access

One person can be both guardian of the person and the estate or two people can take on these roles

Limited versus Full Guardianship:

Under limited guardianship the judge gives the guardian only certain rights and responsibilities, allowing the individual with a disability to keep the rights not granted to the guardian.

Under full guardianship, an individual loses many of his/her civil rights, including the right to drive, choose where to live and work, vote, choose to get married and consent to medical treatment.

Responsibilities of the Guardian

The person seeking to become guardian is the “applicant” and along with an attorney provides the judge an application stating the reasons he or she believes that guardianship is necessary.

A physician must provide an opinion by completing a physician’s certificate of medical examination (CME) indicating the individual is unable to make decisions independently or with support.

Attorney ad litem is appointed to represent the desires of the person with a disability.

A court hearing is held, and the judge has the ultimate authority to decide whether or not someone needs a guardian and if the guardianship should be full or limited. The judge determines who should be the guardian.

The court must consider alternatives to guardianship and supports and services before a guardianship is created. The court must find by clear and convincing evidence that alternatives to guardianship and supports and services have been considered and determined not to be feasible.