Issues of Guardianship

An adult is presumed competent unless it is determined otherwise in a formal competency hearing.

When a child has reached the age of 18, the parents do not automatically become the legal guardians for the individual. Parents often assume that they will be their child's legal guardians through their entire lifetime. Without a legal guardian, individuals may make their own decisions regarding where they live, what medications they choose to receive, and other important choices. The ability to make one's own decisions without guidance becomes a legal concern if individuals lack the understanding to make appropriate and healthy decisions for themselves.

There are generally two types of guardianship: guardianship of the person and guardianship of the estate. The guardian of the person is appointed by the Court to make all personal decisions for the disabled person, including medical care and placement within a residential facility. The guardian of the estate is responsible for managing all the financial affairs on behalf of the individual. The same individual can be both guardian of the estate and for the person. Guardianship does not mean that the guardian is personally responsible for expenses incurred by the individual. A guardian is only expected to use the funds and assets of the individual to pay the obligations of the individual.

Determining guardianship is a legal procedure and must be filed with the Court. The petition is filed in the county of legal residence and generally accompanied by a medical report by a licensed physician who has seen the person within three months and can verify that the individual is unable to make reasoned, informed decisions about his or her welfare.

The cost for obtaining guardianship vary from state to state and indeed may even vary widely from county to county. In cases where financial resources are an issue for parents there are agencies that assist in the guardianship hearing. Contact your local Protection and Advocacy Organization. A good place to start is http://www.protectionandadvocacy.com.