Life Planners™ Newsletter
September 2006
by Mike and Linda Moran
Monthly advice on how to write your child's Letter of Intent,
also known as a Life Plan
Download our free sample
Letter of Intent
(All sensitive and identifying information has been changed.)
What is a guardian?
What is a guardian? How do you know what kind your child needs? How do you get one? If your child has significant cognitive delays or is otherwise unable to make her own decisions, and she is 18 or older, she may need a guardian. While she is in your care,
that guardian will be you.
You may be wondering why you need to take a legal route to become your child's guardian. After all, when it comes to medical issues, you may think that your family doctor will just continue to look to you for all decisions when your child turns 18, and you'd probably be right.
But if that doctor refers her to a specialist who doesn't know you, you might find the specialist reluctant to follow your wishes without the legal guardianship document, especially if it's surgery or another medical procedure that could open the doctor to a lawsuit. Because you can't predict when these situations will occur, you need to ensure that you are your child's legal guardian when she turns 18. Moreover, the guardianship umbrella covers more than medical decisions.
Before we start, you should remember that we are not lawyers—we don't even play them on TV. And even if we were, the laws are different in every state. So this information can serve as an overview for you, but you shouldn't make any decisions without consulting an attorney for your unique situation.
First, let's get some background. The law assumes that people under age 18 (children) are the responsibility of their parents and that people 18 or older (adults) are capable of managing their own decisions—lawyers call this capability by the name capacity. A court can appoint a guardian to manage the decisions of children whose parents are dead or otherwise incapable of being responsible for their children. (You may be familiar with the concept of a guardian because you've named guardians for your minor children in your will—these are called testamentary guardians.) Guardians can also be appointed for adults after a court determines that they are not competent to handle their own affairs—lawyers say these adults have diminished capacity. Someone who has a guardian is referred to as a protected person or a ward.
If your child is over 18, or even just nearing 18, you need to consider whether a guardian is needed. If so, you can become your child's own guardian. Not all adults with disabilities, even those that are severely disabled, require guardianships. Depending on your state of residence, a ward may lose many or all civil rights—the right to vote, to get married, even to drive a car. So, you may want to look at the alternatives to guardianship. You can address some situations without a guardianship—a power of attorney or a trust can handle finances. Representative payees can receive your child's government benefits. So, it may make sense for you (and your attorney) to examine alternatives to guardianship before deciding to go ahead.
If your child does require guardianship, there are several different forms of guardianship to choose from. A full guardianship (called a plenary guardianship in some states) allows the guardian to make both life decisions and financial decisions for the ward. This is the form that all children require, and many mentally-challenged adults require full guardianships as well. On the other hand, perhaps your child cannot intelligently make medical decisions, but is fully capable of deciding where to live or to work. Some states offer limited or partial guardianships, which allow the ward to make certain decisions.
Just to keep things complicated, every state has different twists in their guardianship laws. Some states, such as Texas, distinguish between the Guardian of the Estate (who has responsibility for financial decisions)—often called a conservator elsewhere—as opposed to the Guardian of the Person (responsible for all other decisions). Other states, such as New Jersey, separate guardianships for the developmentally disabled from those for the mentally ill or incompetent. If you need help, your state agency for the developmentally disabled (or your lawyer) can help.
Once you know the type of guardianship you need, you'll want to learn how to get one appointed. No one can become a guardian without being appointed by a court. There are two times a court decision may be needed: when your child turns 18 and when you or your child's guardian dies or becomes incapacitated.
Depending on your state, there may be three ways to have a court appoint a guardian for your child:
- Hire an attorney. For most people, this is the best choice. Some states even subsidize some of your legal costs. If you choose this route, you won't have much work to do and you know there won't be any mistakes.
- Have the state developmental disabilities agency do it. Some states offer this service. The upside is that you don't have much work to do and it's free. The downside is that it can take years. If an emergency arises before the process is completed, you might not be able to make the decision needed.
- Do it yourself. Filing the papers yourself without an attorney is known as a pro se process. This is free, but we don't recommend it, both because you might make a mistake and because it is a great deal of painstaking work.
So who can be a guardian? Obviously, you can be, but you'll also need to know who your child's guardian will be when you are unable to do it yourself. You have three main choices: another person, a company, or the government. If a friend or family member is willing to do it, that can be an excellent choice. It's best to choose someone young enough to be around for a long time, to avoid needing another guardian someday. If you don't know anyone who can do it, you can appoint an insurance company or a bank—there are lots of companies that will do a good job for a fee. Many state and local governments will also take on the responsibility if you apply. Regardless of whom you select, you need to make your intentions clear in your Life Plan.
This month's Life Plan tip:
Ponder the big decisions
Creating a Life Plan requires you to write down lots of little facts that you know. But some parts of your Life Plan require more than that. Allow some "thought time" into your day. While driving, showering, or any other quiet time, focus your thoughts on some of the big decisions in life. Decisions themselves are only the culmination of several snippets of thought time, and quality thought time leads to good decisions.
Ponder where you are in the guardianship process, for example. How old is your child now? Are you in good health? Who are the other
potential candidates as guardian? Are you preparing your child's siblings for the possibility of guardianship? Is this realistic? These are some of many questions to ponder. Eventually, you'll make the decision.
These big decisions are as important to your Life Plan as the laundry list of care instructions—they are your intentions for your child. That is why the Life Plan is also known as a Letter of Intent. Take the time to think through your true intentions on the big issues.
This month's featured question:
What do I say about my child's education in the Life Plan?
This is a big topic, and will be addressed further in a future issue of the Life Planners Newsletter. For now, we'll remind you that the Life Plan can be as wordy as you'd like. You can explain all you want about your child's education, including but not limited to:
- Your philosophy of education, for example, whether you want to aim toward full inclusion, or whether you think a self-contained
classroom is right for your child, or perhaps neither or something in-between.
- What has worked and not worked in the past. What have you already tried? In the event of your death or incapacity, the folks
reading your Letter of Intent will benefit from knowing what's already been tried.
- Whether your child has a written behavior plan, and why.
- The reliability of your child's case manager, teacher and other personnel at school to make some decisions. If you have found, for example, that your child's team at school has sometimes been at cross-purposes with you, you will want to apprise those reading your Life Plan. Likewise, if someone at the school has been especially helpful, you will want to say so.
- Names and phone numbers of everyone, such as the principal, mainstream teacher, special education teacher, case manager, therapists, and so on. Also names and addresses of all schools, places where your child receives therapies, and the like. You get the idea.
Since school placement changes drastically at least once a year, you will want to be sure to update the school section of your Life Plan at least once a year to reflect those changes. Look for more advice in a future Life Planners newsletter.
A thought to ponder:
"Disability is so...daily."—
Joni Eareckson Tada, who runs a successful non-profit organization to help the disabled and their families, and who herself has quadriplegia.
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Last Modified: Wednesday, 06-Feb-2008 07:22:54 PST
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