By: S. Paul Prior, Esq.
As a parent, am I automatically the guardian for my adult son or daughter with a disability?
No. At the age of majority – 18 in New Jersey and 21 in Pennsylvania – the law considers a child emancipated, regardless of the severity of the disability. Only a judge can appoint a guardian for a person over the age of majority.
How do I become my child’s guardian?
A parent must initiate a fairly simply court proceeding order to be designated guardian. This can be done prior to age 18, or at any time after that.
What does a guardian do?
The guardian makes all decisions about the care and treatment of the person under guardianship, who is referred to as a ward. For example, the guardian may decide whether to consent to surgery, or to a change of placement, such as from an institution to a group home. The guardian often attends the IEP or IHP meetings and decides whether to consent to the plan of services. The guardian may also decide on the best way to protect the legal rights of the ward. For instance, if the guardian were dissatisfied with the services an agency provides to the ward, the guardian would have authority to challenge that decision.
The guardian may also make all decisions about the property of the person under guardianship, unless that property is in trust or consists of social security benefits. In these cases it is the trustee and representative payee respectively who would decide what to do with this property. A guardian does not assume financial responsibility for the ward.
What if my child needs a guardian for some decisions, but not others?
Both New Jersey and Pennsylvania have passed legislation allowing for limited guardianship.
This allows a guardian to make decisions in some, but not all, areas of an individual’s life. For instance, parents may be appointed limited guardians of their son with respect to financial and medical issues. In such a case, personal decisions such as where to work or live will remain with the individual. As a result, limited guardianship can take on many forms and can be tailored to match an individual’s strengths and weaknesses While many people with very severe cognitive disabilities may still require a “full” guardian, a limited guardian may be appropriate for someone who is “higher functioning” or who has a very “mild” cognitive impairment. Experienced attorneys and psychologists can assist families in deciding which form of guardianship may be appropriate.
Who should serve as guardian?
A guardian is the ward’s chief advocate, so he or she should have an interest in the person with a disability and be willing to take the time to learn about the person’s needs. Ideally, the person selected as a guardian should live close to the ward. The guardian should also know where to turn for professional help in making decisions. Most often, it is the parents who become guardians when a person with a disability reaches the age of majority. Parents will need to consider a successor guardian who can serve as guardian when they are no longer able to do so.
Can a parent designate a successor guardian though a Will?
Yes. We advise parents to appoint successor guardians in their will, even if they are not yet court-appointed guardians because the provision would take effect. Additionally, it is always a good idea to designate a primary successor guardian, and then one or two other successors to serve in the event that the primary successor is unable to complete his duties.
What if there is no one else who can serve as a successor guardian?
There are several options available. The State may become a person’s guardian if no one else is available, however, this should be used only as a last resort. Instead, consideration should be given to using a community trust organization such as PLAN/NJ or PLAN of Pennsylvania. Such services can be funded from a properly established trust for the benefit of the individual with disabilities.
Is it expensive to obtain guardianship?
Guardianship is relatively inexpensive and easy to obtain privately with the assistance of an experienced attorney. Procedures sometimes vary by county, and this may affect the cost. Generally, however, courts try to streamline the process in cases in which the child’s disability is clear.
In New Jersey, if your child receives services from the Division of Developmental Disabilities (DDD), it may be possible to obtain guardianship at no cost. However, DDD can take several years to reach your child’s case. A private attorney can use special procedures to streamline guardianships for DDD clients.