Guardianship is not automatic for parent of adult with disabilities.

by | Aug 21, 2014 | Educational Materials, Guardianship Alliance, Guardianship Alliance Blog

Let’s assume: You are the parent of a son who has a disability, whether from birth or acquired as a result of a brain injury or serious illness. He is now age 18, however, he functions at a mental age of approximately 7 years. You have cared for him both physically and emotionally for the 18 years of his life. As his parent you have always made the decisions necessary for him to receive services and treatment. Now you are being told, that just because he turned age 18, you no longer have authority to make any decisions for him. He is now emancipated and he has authority to manage his own life. But you know he is not capable of managing his life. You’ve always been there for him. You’ve always taken responsibility for whatever happens for and with him, both good and bad. Why would that change just because his chronological age changed? His mental age hasn’t changed — and it probably won’t, at least not very much!

Your authority changed because the law provides that when all persons become 18 years of age they are emancipated, i.e., released from paternal care and responsibility and have full legal rights or capacity.The law does NOT say that if a person has a disability or illness that causes him to be unable to manage his own life, then he is not emancipated. Rather, in that case, it is necessary for a court to make a legal determination that (1) the person is incapacitated, and (2) someone should serve as his guardian.

Guardianship gives a person or agency responsibility for making decisions on behalf of someone who is unable to make or communicate responsible decisions about his/her own life. The person for whom a guardian is appointed is called a “ward.” Without being the guardian, you cannot legally make decisions for your son or daughter. Often service providers, including doctors and residential care staff, consult with parents who are not guardians and may take their consent in certain situations. However, they are not obligated to do so and may refuse because of concern for their own liability.

Guardianship is a serious responsibility and one that should be approached with the same seriousness and attention which you apply to your own life. As a guardian you have overall responsibility for your ward’s welfare.While guardianship provides important protection, it is also very restrictive. An unlimited guardianship can remove all of an individual’s legal rights to manage his/her own life.

Before considering guardianship for an adult with a disability, there must be an assessment of the person’s functional capacity. This may include a recent psychological or psychiatric evaluation and a medical examination which, together, clearly describe the history, nature and degree of the disability.

Before appointing a guardian, the court must find by “clear and convincing evidence” that the person is incapacitated. Colorado law defines an incapacitated person as “an individual, other than a minor, who is unable to effectively receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.” (C.R.S. 15-14-102(5))

You must first consider if limited guardianship would be appropriate. Under limited guardianship, you are only responsible for specific matters with which the ward may need assistance, for example, money management and/or medical decisions. The ward remains responsible for all other decisions. Colorado law presumes that only limited guardianship is required. If unlimited guardianship is requested, you must prove to the court that it is necessary.

The procedure for obtaining a guardianship in uncontested cases need not be difficult. It can be done with the assistance of an attorney or, if there is no contest to the guardianship, it is relatively easy to do on your own. The Guardianship Alliance provides a class (the Petition Assistance Class) which includes the necessary forms and instructions. We can also make referrals to experienced attorneys.

This class helps persons with pro se (without an attorney) petitions for guardianship in noncontested cases. We provide the necessary forms and all instructions in the class. The fee is $125.00 for the packet which includes instructions and samples of forms. For the same fee, the pro se packet can be mailed to persons who cannot attend a class; however, attendance is strongly encouraged.

As a guardian, your duties and responsibilities may be similar to those you have exercised as a parent. However, there are a few exceptions. Namely, you are NOT responsible to provide for your ward out of your own funds and you are NOT liable to third persons for your ward’s actions and behaviors. Also, if you use reasonable care in choosing a service provider for your ward, you are not liable for injury to the ward resulting from negligent or wrongful conduct of the provider.

In addition, as a guardian you MAY NOT admit your ward for involuntary treatment for mental illness, alcohol and drug abuse or for institutionalization for developmental disabilities. Neither can you give consent for sterilization.

Even though, as a guardian, you will have responsibility for protecting and caring for your ward, it is important to carefully distinguish between providing adequate protection and imposing excessive restrictions. The law requires guardians to make every effort to include their ward in all decisionmaking. The kind of information and how it is presented will have a bearing upon the ward’s ability to participate in a decision. Information should be tailored to the understanding of the individual; the language must be simple; repetition may be necessary, and visual aids may be helpful. Following the attempt to inform, special efforts should be made to determine whether the person has in fact understood the information, perhaps through quizzing or other feedback.

In general, guardians have responsibility for personal and medical matters. If a ward has more assets than are required to provide for his/her daily needs, or if he/she owns real estate, a conservatorship may be necessary. Conservators are only responsible for money and property. Most adults with developmental disabilities do not need a conservator. Guardians can manage limited amounts of money such as income from SSI, Social Security, and low wages. A guardian may also be the Representative Payee for a ward.

For information and assistance with guardianship and similar issues, call the Guardianship Alliance at 303-228-5382 or send an email.

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