If you're the parent of a child with an intellectual disability, you likely take care of everything for her and people outside the family take direction from you without question. However, once your child becomes an adult, you should consider her abilities, her desire for independence and whether a guardianship is necessary for her health and safety.
A guardian, also called a conservator, is a substitute decision-maker approved and supervised by a court. There are two types of guardians: guardian of the person and guardian of the estate. A guardian of the person makes medical and other personal decisions, while a guardian of the estate makes financial decisions and manages the assets and income of the individual.
Downsides to Guardianships
It's possible that your adult child might not want a guardian. For the court to grant you a guardianship, you will have to give a judge specific examples of your child’s inability to make certain decisions, most likely in a court, in front of your child. In some states, your daughter will have her own court-appointed attorney to assist her in making her wishes known. Guardianships can cause disputes among family members who may have different opinions concerning who should be the guardian and how much control the guardian should have over the adult child’s life.
Handling the administrative aspects of a guardianship can be cumbersome and costly. When you ask the court for a guardianship, you must pay a fee, provide documentation of the intellectual disability and possibly undergo a background check or post a bond if your child has assets. If appointed guardian, you will need to make regular reports to the court.
Read More: Can a Legal Guardianship Expire?
Benefits of Guardianships
If your adult daughter engages in risky conduct or people take advantage of her, a guardianship offers some protection. As guardian of the person, you will be able to make critical decisions regarding where she lives and with whom she associates, while as guardian of the estate, you will be able to protect her money and property.
Having a guardianship in place often makes it easier to get things done since you will be able to deal directly with medical providers, banks, credit card companies, cell phone companies and others on your adult child’s behalf. Additionally, at some point, a health care provider may require a document designating you as the legal decision-maker before providing treatment.
Alternatives to Guardianship
Not all adults with intellectual disabilities need guardians. Some adults are able to live independently with minimal support. Disability rights advocates stress that families should first explore alternatives to guardianship, and if alternatives are not possible, they should tailor a guardianship so it only transfer those rights necessary to meet a person's needs.
Your adult child might be able to voluntarily make you her health care agent, giving you the authority to make health decisions for her. She can also sign a power-of-attorney document to give you authority to deal with financial matters. Additionally, you may become representative payee for the receipt of her Social Security benefits, and possibly other benefits, without the need for a guardianship. By maintaining a joint bank account with your adult child, you will be able to assist her in paying her bills.
- American Bar Association: Capacity Definition & Initiation of Guardianship Proceedings
- American Bar Association: Representation and Investigation in Guardianship Proceedings
- American Bar Association: Guardian Felony Disqualification and Background Requirements
- American Bar Association: Monitoring Following Guardianship Proceedings
- The Arc: Guardianship Position Statement
- American Bar Association: Links to State Advance Directive Forms
- Social Security Administration: When People Need Help Managing Their Money
Based in the Hartford, Conn.-area, Kristen Harris has been a practicing attorney for 18 years. She writes about business topics, civil litigation, family law, criminal law, probate and estates, contracts, health care and education law.