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When most people think of “adult guardianships,” they often envision an aging parent or grandparent, possibly with dementia or memory issues. That certainly is a necessary, and sad, part of this area of law. But, we get far more requests for “adult” guardianships for much younger people with developmental disabilities. Typically, they are in their twenties, and still living with their parents. If this is your situation, then we can certainly help, but that is not what most of our adult guardianship cases are about.

As you probably already know, a child is under the legal guardianship of his or her parents until their eighteen birthday. On that magical day, having reached the age of majority, they are presumed to be and ADULT, and therefore have the full legal rights of a fully competent adult. (We all know they are not until several years after that, but that is the law.) As of that moment, the parents no longer have legal control over your child, and cannot legally make decisions for him or her. Including medical decisions! It might be a few years after they turn eighteen, maybe longer, when the eighteen year old will develop the maturity to actually behave like an adult, but it will happen eventually.

This is not the case for families with children who have developmental disabilities and/or cognitive impairment. For many, no matter how old the child is, the child will need a loving parent or family member to provide them with assistance for the rest of their lives. The fact that the law presumes the adult child has the mental capacity to make decisions on their own, and manage his or her own affairs as of their eighteenth birthday, becomes a virtual nightmare for the parents as caretakers. The parents cannot apply for public assistance for their child. The parents cannot make medical decisions for their child. They cannot even obtain medical information concerning their child due to HIPAA regulations. It is a mess, and the only solution is to go through a special legal proceeding, a guardianship proceeding, which is identical to the court proceeding for an aging adult.

The proceeding is a two stage process. There are many steps along the way to a court proceeding, but once the matter is presented to the court, the judge has two things to decide: (1) First, does this person (called the Ward) have the mental capacity to handle his or her own affairs? That would be personal affairs, or financial affairs, or both. It is very rare that the court finds that only one applies. In other words, if the child cannot get themselves dressed in the morning, or prepare their own meals, they probably cannot handle a check book or get themselves to a doctor’s appointment. (2) Once it is determined by the judge that the Ward lacks the mental capacity to handle his or her own affairs, the judge must then decide who is going to be the guardian over the person and property of the Ward. In the case of an adult child with developmental disabilities, the parents usually initiate the guardianship proceeding, and they are generally appointed to be the guardian(s) over their adult child. In the case of an incapacitated older person, a child will often volunteer to be the guardian. If no family members volunteer to serve as guardian, then the court will appoint the Office of Public Guardian. I have nothing but good things to say about the hardworking social workers that work for the Office of Public Guardian, but they are surely overworked, and probably underpaid, so they should be our last resort. The moral of the story is … BE NICE TO YOUR CHILDREN so they will take care of you in your old age! Amen to that!

Those are the basics. The process is a little involved, so I won’t get into the nitty gritty right now. If you have any questions, or would like us to represent you in an adult guardianship proceeding, we would be happy to help you. More information can be found on our Guardianship Proceedings page.

Please call us at 609-654-5489.