Like many older parents of adult children with disabilities, you are probably concerned about what will happen to your child after you are gone. You may have also done extensive planning to make sure your child’s needs are met. You are comfortable that there is a good team in place when needed. So can you rest easily? Unfortunately, not always.
It is our experience that sometimes, even in the most loving families, disputes can arise about your adult child with disabilities. This conflict most likely end up in your local probate court. There, a court appoints a guardian for your adult child who is not able to manage his or her affairs. That guardian is charged with looking out for your adult child’s best interest. You have the legal right to nominate the person(s) whom you would like to serve as guardian and their successors. As long as the person is willing and suitable, the court should honor your wishes. The court is also the superior guardian who has ultimate say over your adult child’s best interest.
Even so, sometimes conflict happens. Fights can come up such as where your adult child should live, what care she or he should receive, or who should be guardian. These conflicts can be protracted, expensive, and damaging to your loved ones, and most importantly, your child. Fortunately, there are new procedures offered by the Supreme Court of Ohio to file a formal complaint about a guardian’s conduct.[i] However, while a review of a guardian’s actions should always be allowed to protect your adult child, recent case law seems to support the proposition that a guardianship case can become a litigation battleground.
What does this mean? It can mean a drawn out and expensive ordeal.
What steps can be taken to avoid this?
First, you can plan with your family and make sure that all of your loved ones understand your wishes and the wishes and best interest of your child. While there may not always be agreement, this can help to reduce the chance of a conflict tearing your family apart.
Second, you should, if you have not already done so, made your wishes known by a formal nomination of a guardian and his or her potential successors. With this, you can write a letter providing guidance and direction about your child. This should help and also help guide the court.
Third, in your own estate plan, you can make it clear that the guardian is to be supported in reasonable decision-making and may defend him or herself and be reimbursed for doing so. While this sadly takes away future resources which could be used for your adult child, it protects her or him and your chosen successor. You could also insert penalties for your heirs who institute litigation which may be damaging to your child.
What can be done if a conflict does happen?
Hopefully, if conflict starts, all concerned will work together to come up with a reasonable solution. If that does not happen, the court could appoint a guardian ad litem to look out for and to advocate for your adult child’s interests.[ii] Your child or someone acting on her or his behalf could also contact Disability Rights Ohio (DRO), which may be able to assist.[iii] If DRO did so, it would be to staunchly advocate for your adult child’s expressed wishes.
Hopefully, your family will work together for your adult child with disabilities’ best interest. Planning now is the best cure to avoid future conflict involving your family. If conflict happens, you also now have tools for your loved ones to understand how to resolve it.
[i] Supreme Court of Ohio Rule of Superintendence, Sup. R. 66.03(B) http://www.supremecourt.ohio.gov/LegalResources/Rules/superintendence/Superintendence.pdf
[ii] R.C. 2111.23