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Does My Child Need A Guardianship?

As a child
with cognitive disabilities nears his or her 18th birthday, parents often wonder
whether they should seek a guardianship over their child. The short answer to
this question is, "it depends." In most states, a parent is deemed to
be the legal guardian of his or her child until the child turns 18. Until 18,
parents have the legal authority to make decisions (medical, financial, etc.)
for their child. Most providers of services, including physicians, dentists,
and school personnel, do not question this authority when the parent is in
charge of his or her minor child and the parent is making decisions,
recommendations, and participating in all of the areas where a child needs to
be represented. The minute the child turns 18 years of age that authority
ceases. The parent must then decide whether to seek decision-making authority
for the child, and if so, how much authority. The person given the authority to
make decisions is called a guardian.

A guardian is
appointed by the probate or surrogate court for an incapacitated person
(sometimes called a "ward" or "respondent") and the guardian
can be in charge of some or all personal affairs of the incapacitated person.
In some states however, the financial affairs of a person are dealt with
separately by a person called a "conservator." Therefore, in a case
where an incapacitated person has assets that need to be protected and
invested, it may be that both a conservator and a guardian are appointed for
the person. In most cases the guardian and conservator is the same person.

Not every
child who has disabilities needs to have a guardian. If the child is able to
make good decisions, then he or she may not require a guardian or conservator
at all. In some cases, a limited guardianship may be appropriate where a person
may have the capability to make some, but not all decisions. For instance, a person
under guardianship may retain the right to vote and handle a limited sum of
money, such as up to $5,000.00, with all assets above that amount being managed
by a conservator. In many states the family and lawyer are required to explore
the possibility of a limited guardianship as opposed to a full guardianship.

Who may be a
guardian? Any person 18 years of age or older may be a guardian; the harder
question is who should be the guardian. Often parents will petition the probate
or surrogate court to be the guardians of their child and usually the petition
is granted. Sometimes the court will appoint one parent as guardian, other
times both parents will be appointed as co-guardians. In some cases where the
parents of the child do not live together and cannot agree on who should be
appointed as guardian, the proceedings may become contested, and the court will
appoint an independent guardian. Likewise, if there are funds to be protected,
the court may appoint an independent party to serve as the conservator if the
family is unable to agree on the appointment. In some states, mediators are
available to help the parents resolve the issues rather than having a contested
hearing, which can be expensive and take a long time. With the court's priority
being the best interests of the child, it will often choose an independent
guardian or conservator if the parents cannot get along, which is sure to leave
both parents disappointed.

should also take steps to name a successor guardian to serve after the parents
have both died or are no longer able to care for the child. Parents have the
following options:

  • Figure out who to appoint The parent should figure out who he or she wants to
    nominate as the guardian and as the successor guardian, should the proposed
    guardian be unwilling or unable to serve. This person will be in charge of
    making all decisions for the child including social, educational,
    personal, and medical decisions. This guardian basically steps into the
    shoes of the deceased parent and is charged with making prudent decisions
    as required. Thus, great care should be taken in selecting a guardian.
  • Talk to prospective guardians: The parent should talk to that person to make sure the
    person wants to serve. The parent should discuss all issues with the
    proposed guardian to determine whether he or she is willing to take on
    that responsibility and serve as the substitute parent. The proposed
    guardian should be informed of all of the issues and responsibilities the
    particular child requires. There is no significant benefit in taking on
    the role as the guardian, but rather it is a responsibility to be taken
    seriously. If the proposed guardian declines to serve, the parent should
    not be upset or dismayed, but should be pleased that a person who may not
    want to serve declined to serve now as opposed to later when the parent is
    dead and cannot nominate a successor guardian. That is why it is so
    important there should always be a substitute or backup guardian named.

must be further discussion with the proposed guardian as to where the child
will live. In some cases, the child may be living in a residence, at home, or
may be directed to live in the home of the proposed guardian. In some
instances, it may be appropriate for the stability of the child to have the
guardian move into the child's home if and when the parent is no longer alive
or otherwise unable to take care of the child.

about where the child will live also present financial considerations,
primarily, who will take care of and be in charge of finances. Normally, the
child will have a special needs trust established for him or her, and there
will be a trustee appointed to oversee the investment, income, asset
distribution, tax filing, etc. One should always consider the interrelationship
between the guardian and the trustee to be sure that conflicts between the two
do not exist. The guardian will be requesting funds from the trustee to
maintain the child's household, and pay for trips, vacations, clothing, etc.,
for the benefit of the child, and the trustee may unreasonably be reluctant to
make some of these distributions if the guardian and trustee have a personality
conflict. This is more likely to be a potential problem when two family members
are named as guardian and trustee, but it should be less of an issue when the
trustee is a professional trustee, like a bank, or an individual professional
trustee, like a lawyer who serves as trustee for special needs trusts.

Put the nomination in writing:

    • Nominate a guardian in a will. A parent may nominate someone to be guardian of his
      or her child (whether under 18 or, if disabled, 18 and over).This person
      will still have to be confirmed by the court after the parent's death,
      but is wise to include the nomination in the will so the parent's
      preference is known.
    • Designate a standby guardian. Most states have a process by which a parent can
      designate a guardian to take care of a child in the event the parent is
      incapacitated or has died. If the parent believes his or her choice of
      guardian will be contested by the other parent or by family members, the
      guardianship designation can be confirmed by the surrogate or probate
      court before the parent dies. Not all states have this process, but if it
      is available in the state in which the child lives, the parent should
      both nominate a guardian in his or her will and designate a standby
    • Prepare a letter of intent as guidance for the
      (An upcoming Voice article
      will address letters of intent).

A guardian
can also nominate a successor guardian and should do so to be sure that the
child is cared for within the constellation of family to which the child is
accustomed if the current guardian dies. In many states, guardians may also
designate a standby guardian, just like the parent can as explained above.

In sum, the
appointment of a guardian for a child with a disability is one of the more
important estate planning decisions a parent can make. There should be
considerable discussion within the family as to who should be the guardian, not
based on which other child is the oldest or who is living closest, but more
importantly, which is the most suitable person to serve, who will best attend
to the care and protection of the child if the parent is not living. While
there is no substitute for a parent, and there is no one who will take the job
as seriously and diligently as a parent, one must nevertheless consider who
will be the best possible substitute to serve.

decisions-who will serve as guardian, who will serve as successor guardian, the
instructions to be left for the guardian-should be discussed with your estate
planning lawyer and reviewed often to be sure that if a change is necessary, it
is attended to promptly.

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