Guardianship for Individuals with Developmental Disabilities

February 15, 2018

Understanding the Guardianship Process and Your Options When Your Child Turns Eighteen

Many parents of individuals with developmental disabilities are surprised to learn, that when their child reaches the age of eighteen, they no longer have the legal right to make decisions for and about their own child.  Regardless of the level of care and guidance the child needs, individuals with developmental disabilities are considered, by law, to be an adult on their eighteenth birthday.  Those adults are probably still living with their parents and may still be attending high school.  But, if they require assistance maintaining their health and safety, and with making informed choices, someone needs to become guardian in order to be allowed to make the important decisions in their life and provide the required guidance.

There are two main types of guardianship – Plenary (or full) guardianship and Limited guardianship. If an individual needs oversight in all areas of their life, they would need a plenary guardian.  If an individual can successfully manage some areas of their life and not others, their right to retain control over those specific areas can be protected through obtaining limited guardianship.  The areas that are considered in guardianship are: legal, medical, financial, educational, vocational, residential, social, recreational, and acts of daily living. During the guardianship process, the severity of the individual’s decision-making impairment, and their ability to protect themselves from exploitation and undue influence, will be evaluated.

The person or persons who take on the role of guardian(s) for an individual are frequently the parent, but it may be other family members or responsible party known to the individual, a public or private guardianship entity, or an attorney.  The role of guardian is an important and varied one.  A guardian serves as advocate, decision maker, financial planner and manager, healthcare proxy, and coordinator and monitor of services and supports. They must also maintain a relationship with the individual in order to allow them to understand the individual’s needs and goals so that they can make responsible, informed choices on their behalf.

The guardianship process can be a lengthy and demanding one guided by state and county rules and regulations.  Prospective guardians may hire an attorney to conduct this process for them. Prospective guardians can also work with SCARC Guardianship Services utilizing the Pro Se method of obtaining guardianship.  Pro Se – meaning “for oneself” – means that the guardian will represent themselves instead of hiring an attorney.  SCARC Guardianship Services guides guardians through the paperwork, filing deadlines, and assorted requirements of completing this process. The hands-on guidance from SCARC Guardianship Services transforms the guardian process into a much less daunting and simplified procedure for the proposed guardian, who becomes comfortable filing for themselves.  It is important to realize that the court will also appoint an attorney to represent the individual in need of a guardian.  This court-appointed attorney must be paid by the individual, if they have the resources, or by the guardian.

An overview of the Pro Se method:

 

  • Prospective guardians would need to speak with SCARC Guardianship Services staff and complete an application for their services. The case is reviewed for its appropriateness for the Pro Se method and information necessary to complete the legal documents is gathered.
  • A SCARC Guardianship Services Financial Agreement is sent to the family detailing the costs involved in the process and the timeline for their payment. (In some cases grant money is available to assist with these costs.)
  • Court mandated information about the role and responsibility of a guardian is shared with the family so that they will be able to meet the court’s requirements for the education of guardians about their position.
  • Each county has their own requirements for the information that must be filed to support the request that a guardian be appointed. In Sussex County, two doctors (usually a psychologist and a medical doctor) must examine the person and sign a certification of the need for guardianship.  There are strict requirements for the timing of these examinations and the filing of the paperwork.
  • When SCARC Guardianship Services receives the medical reports, they will review them to make sure they are acceptable for judicial review and prepare the petition for the court
  • Within thirty days of the first examination, the petition must be filed with the County Surrogate’s Office. Within a week to ten days, the court will set a hearing date and assign an attorney to represent the individual that requires the guardian.
  • Copies of required legal documents will be served personally on the individual for whom guardianship is being sought, and by mail on their attorney and all next of kin eighteen years of age or older.
  • The attorney that has been appointed for the individual must interview them as well as the proposed guardian, family members, and caregivers. The attorney will consider financial, legal, and medical matters before submitting a written report to the court about the individual’s need for a guardian and the fitness of the proposed guardian. This attorney is assigned to fill this role by the surrogate court and usually will work at a reduced rate.
  • The guardian will attend the hearing as well as the court appointed attorney. Usually, the individual in need of guardianship does not have to appear in court.  Both the psychologist and physician must address the ability of the person to appear on their certification provided to the court.  If for any reason it is not appropriate for the individual to attend the hearing, a recommendation to that effect must be made by the attorney or the physician.
  • After guardianship has been granted, the guardian must appear before the county surrogate to complete the guardianship process. They must accept the guardianship before the County Surrogate, and pay the fee is required, in order for the official Letters of Guardianship (with raised seal) to be provided.
  • If you have any questions or would like more details about the Pro Se method, timelines, fees, etc., please contact SCARC Guardianship services for answers and information.

 

All guardians must consider who will succeed them if they should be unable to perform their role in an individual’s life.  A guardian should name a successor guardian in their will.  A successor guardian can be a family member, another adult willing to act in that role, or a professional.  SCARC Guardianship Services currently serves as guardian or co-guardian for many Sussex County residents.  If you’d like to know more about naming SCARC Guardianship Services as a successor guardian, please contact them at 973-383-5804.

As with many of the challenges parents have faced in raising their children with developmental disabilities to adulthood, the guardianship process seems to be yet another hurdle. However, it is an important safeguard to have in place.  Guardianship adds a necessary layer of protection in assuring that important decisions – such as medical, educational, and financial ones – can be made by the person best equipped and most knowledgeable about the individual.  Guardianship can make an important contribution to a parent’s peace of mind as they watch their child with developmental disabilities enter the adult world, and SCARC Guardianship Services is a valuable resource in this process.