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updated: 8/19/2013 6:53 PM

Guardianship can empower parents

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By Sherry Manschot

Turning 18 is a milestone. There is a world of perks available to you when you turn eighteen: you officially become an adult, can vote, get married, get a tattoo, sign contracts, and establish credit. Legally you become independent and responsible for the decisions that affect your medical treatment, finances, and life in general.

As parents, so much of our time and energy is spent teaching our children how to make decisions and encouraging them to be independent. We hope that when they turn 18 all the lessons we have so diligently instilled on them over the years will have become ingrained and thus serve them well for the rest of their lives.

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If you have a child with a disability that may prevent them from making sound decisions, an impending 18th birthday means that you should be making some decisions about whether or not to petition for guardianship.

Guardianship is the legal means of asking the court to declare a person unable to manage their own affairs. A guardian, or guardians, is then appointed to become the primary decision-maker.

There are two types of guardianship and parents need to decide which is best for their situation. The first is Guardianship of the Person. This is if your child is unable to manage their personal decisions on their own. Such guardians can make decisions about health care, housing, food, clothing, etc. The second is Guardianship of the Estate. This pertains to the management of their finances such as income from a job, Social Security benefits, property, etc. Parents may petition for one or both types. One or more persons can jointly serve as guardian for both or there can be separate guardians for each.

"When appropriate, a properly structured guardianship empowers parents to ensure the best life possible for their child with a disability," according to Kirsten Izatt of The Estate Planning Law Group which specializes in guardianships.

But many parents wrestle with the concept.

"For 18 years, parents have spent so much of their time and energy fighting for their child's rights and working toward independence," says Izatt. "They are afraid that guardianship is a step backward because it takes away a child's right to decision making."

On one hand, your child will no longer have the authority to make final decisions about their life. On the other hand, suggests Izatt, guardianship allows a parent or guardian to continue to be the primary decision-maker. She also suggests that it is possible to have the specifics of the guardianship set up to manage certain areas but not others.

Some fear that a judge will be making decisions about their child's life. Unless there are extenuating circumstances, the judge does not get involved with day-to-day matters as they rely on the guardian to handle those.

How do you decide who should be the guardian? The preference is usually for the parents, or if parents are not available, a sibling or other family member. If no family members are able to serve as guardian, then a close friend. And if no friends are available, the court can appoint a professional guardian.

If you decide that petitioning for guardianship is right for you, the process can be started before the child turns 18 but is completed shortly after the child turns 18. (If your child is past 18 you may still petition for guardianship at any time).

Izatt says that there are specific time requirements to file. The petition process begins by collecting information on the person, their disability, and how it affects their ability to make decisions. It must also include a physician's report certifying your child's level of functioning.

At a hearing before a judge, the petitioner must present evidence that the person lacks sufficient capacity to make responsible decisions due to their disability. They must also demonstrate that the proposed guardian is capable of carrying out the expected responsibilities.

Guardianship is a legal matter authorized by the courts. They do specify the duties and responsibilities as well as the paper work that needs to be filed annually. It is important to understand the full weight of your position before taking on the role of guardian.

For those just not ready for a guardianship, there are alternatives. Some people believe that a power of attorney is sufficient. "No power is relinquished with a power of attorney; instead, another individual is empowered to act on behalf of the agent as needed. The important issue is that the child with a disability must understand the significance of the documents they are signing; if they don't, they don't have capacity to sign and a guardianship is required," explains Izatt. A special needs trust can be set up to manage specific finances. And of course, family members can continue to assist in the decision making process.

If you are considering guardianship, it may be worth the investment of seeking legal advice to be sure you are fully informed and to answer questions specific to your family situation.

To make the process easier to understand, The Estate Planning Law Group has a packet of information to answer many of the questions that you might have before you begin planning for the guardianship of your child.

If you would like to learn more, you can request a free Special Needs Freedom Guide at SpecialNeedsFreedomGuide.com.

• Sherry Manschot is the marketing/public relations manager at Western DuPage Special Recreation Association. She leads a parent network of special needs families at WDSRA. Manschot can be contacted at sherrym@wdsra.com. More information about WDSRA can be found at wdsra.com.

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