Parents often ask about establishing guardianship for their child. Usually this occurs when a child has a disability and is about to turn 18. The parents may be aware, or have been told by someone, that once a child reaches age 18, he or she has reached the age of majority and is presumed (unless proven otherwise) to be competent. Furthermore, the parent will no longer be the decision-maker when it comes to that child’s education or healthcare.
For many parents, and especially for parents of children with disabilities, this is a scary proposition. Understandably they want to remain involved as an advocate for their child and be included in discussions and decisions regarding that child’s education or healthcare. They are concerned that once their child turns 18 the parents will be denied information by the educators and other service providers who care for their child with special needs. So when some well-meaning person suggests guardianship as a solution, parents will often be ready to file the application and get appointed as their child’s guardian. But is guardianship the answer for every situation? This is where we begin our discussion.
Guardianship may be established by a probate court in the county where the child resides. The court generally considers three questions when deciding whether to appoint a guardian: 1) Is the child legally incompetent? 2) Is there a less restrictive alternative? 3) Is the individual applying to be guardian suitable?
Ohio’s definition of legal incompetence is someone who, as a result of mental or physical illness or disability, developmental disability, or chronic substance abuse is so mentally impaired, that he is unable to care for himself, his property or to provide for his minor children. A diagnosis of Schizophrenia or Down syndrome does not by itself make one incompetent. The effect of the disability must be such that it prevents the individual from being able to care for himself, his minor children, or his property. It is the level of function or impairment that determines if one is incompetent.
If the court determines that an individual is legally incompetent, it next considers whether there are less restrictive alternatives. Are there arrangements already in place that authorize someone else to manage healthcare or finances for the individual? For example, the Social Security Administration can appoint someone to serve as the Representative Payee for the individual who is receiving either SSI or SSDI payments. The Representative Payee receives the monthly payment on behalf of the individual, segregates it in a separate bank account and uses the funds to pay for the individual’s expenses. SSA further requires that the Representative Payee provide an accounting of how the funds were spent. This arrangement could be an alternative to guardianship. If the individual has no other assets to manage, there would be no need for a guardian to manage finances. Similarly, if an individual has sufficient understanding or capacity, he may designate agents under a Power of Attorney to be the surrogate decision makers for healthcare, financial and even education decisions. This too is an alternative to guardianship.
The final question that the court considers is whether the person applying to be guardian is suitable. Here the court has a lot of discretion. In general, the guardian must be competent, suitable, willing to accept the appointment and agree to make decisions that are in the individual’s or “ward’s” best interests. The court is not required to appoint a family member, although typically the preference is to appoint a family member. Recent changes in Ohio law allow a parent to nominate a guardian for either their minor or incompetent adult child to whom the court must give preference.
Guardianships may be limited or unlimited. They may be for medical and residential decision-making only (guardian of the person), managing the ward’s finances (guardian of the estate), or both. Once a guardian is appointed he or she is standing in the shoes of the ward and making the decisions that the ward would be able to make if he were competent. The guardianship is subject to ongoing supervision by the probate court. The guardian must report regularly to the court and must obey all court orders.
In many situations, guardianship is appropriate and necessary. But before anyone runs off to probate court to file a guardianship application, they should consider whether guardianship is appropriate or if less restrictive alternatives are available. Guardianship carries much responsibility for the guardian and limits the rights of the ward. Should the parent be the guardian of his or her child? Well, that’s a topic for a future discussion.