When an intellectually disabled child reaches that age of 18, he or she is presumed to be a competent adult with the ability to make decisions concerning medical procedures and medications, living choices, education, finances and personal needs. When a child turns 18 medical providers can no longer give parents access to records relating to the child unless the disabled teen is competent to sign a health care proxy or HIPAA release. This change in legal status is surprising to parents and often they are unaware of the change until some emergency situation arises. To be prepared it is important for parents of intellectually disabled children and adults to know what to expect and to prepare for the future needs of their child.
- What is the Court’s definition of an intellectually disabled individual?
An intellectually disabled individual is defined as an individual who before the age of 18 demonstrates significant sub-average intellectual functioning along with limitations in adaptive skills areas such as communication, self-care, home living, social skills, self-direction, health and safety, functioning academics, leisure, and work.
- Do all individuals with intellectual disabilities need a guardian?
No. Guardianships are only appropriate for intellectually disabled individuals who also meet the definition of an “incapacitated person.” An incapacitate person is defined as an individual with a clinically diagnosed condition that effects his or her ability to receive and evaluate information, or to make or communicate decisions, which renders him or her incapable of making essential decisions relating to health, safety, or self-care, even with technological assistance. The inability to make these essential life decisions is really the threshold determiner for a guardianship.
- What is a guardian?
A guardian is an individual who is appointed by the court to make decisions for an intellectually disabled or incapacitated person who is determined by the court to be incapable of making those decisions on their own. The focus of the new guardianship laws is to have limited, tailored guardianships which will allow disabled or incapacitated individuals to retain their right to make decisions in areas where they are capable of making them.
- Who can be appointed guardian?
Any person over the age of 18 who is qualified is eligible to act as a guardian. A parent, sibling, or a relative are possible guardians and there are professional guardians, both lawyers and non-lawyers who can also be appointed. A parent of a disabled child has priority in most instances. All proposed guardians are subject to a criminal background check, even parents. A parent who has been appointed as guardian can nominate a guardian for his or her intellectually disabled child in the event they are no longer able to serve due to a incapacity or death. A parent should sign necessary documents to have a say in who will be their child’s successor guardian.
- How does a guardian get appointed?
To become a guardian of an intellectually disabled person, a petitioner files a Petition for Guardianship, a Clinical Team Report and a Bond with the court. The court then will issue a citation or notice that needs to be given to all interested parties, and served in hand on the intellectually disabled individual. This notice gives a time period during which interested parties can object to the guardianship. Individuals who agree that a guardianship is necessary and approve of the proposed guardian may file assents to the guardianship. If the petition contains a request that the guardian be given authority to administer antipsychotic medications or other extraordinary authority, the court will automatically appoint an attorney to represent the intellectually disabled person’s interests. At any point in the proceeding a request can be made by any interested party that an attorney be appointed for the intellectually disabled individual and counsel will be appointed. After the objection period ends, if no objections have been filed, a hearing date is scheduled. The intellectually disabled person should attend the hearing unless the professionals who filled out the Clinical Team Report stated his or her appearance would be clinically or emotionally harmful.
At the guardianship hearing, the judge will determine whether the intellectually disabled individual has a clinically diagnosed condition rendering him or her unable to receive or evaluate information necessary for his or her physical health, safety or self-care and, if so, in what areas he or she cannot adequately receive or evaluate the information. The guardian’s authority should be limited to those areas only and the decree of guardianship called “Letters of Guardianship” will list these limitations.
- How do I get a Clinical Team Report?
A person petitioning to establish a guardianship over an intellectually or developmentally disabled individual is required to file a Clinical Team Report with the guardianship petition to begin the guardianship proceedings. This is a medical document that describes the decision making capacity of the disabled person. This report is filled out by the licensed psychologist, physician and social worker who have been working with the intellectually disabled individual and who are familiar with his or her current state of health. Often the form is completed by a licensed school psychologist, a licensed school social worker and the primary care physician. These professionals are asked to provide information not only about the individual’s limitations but also to describe what activities and decisions the person has capacity to make without assistance.
- What are the powers and responsibilities of a guardian?
A guardian oversees all the personal needs, including medical decisions, housing options, social and educational needs, applies for benefits and insurance, and is an advocate for the individual. The guardian’s decisions should take into account the opinions, values and choices of the disabled or incapacitated person whenever possible. The guardian’s authority and powers are set out in Letters of Guardianship which are issued by the court when the guardianship is granted.
If a guardian is appointed with authority to consent to the use of antipsychotic medication, it is the guardian’s responsibility to monitor the disabled or incapacitated person’s reaction to the medication and to let the physician know if he or she suffers any adverse affects.
- What responsibilities does a guardian have to the Court?
With respect to a guardian’s obligations to the court, the guardian needs to file a care plan for the intellectually disabled person 60 days after their appointment. Thereafter the guardian will need to file a care plan on a yearly basis. The care plan contains some basic financial information also, but a guardian has authority over an individual’s finances only if those finances are limited. If the intellectually disabled person has significant assets that are not in trust, a conservator needs to be appointed who will have authority over these finances. One person can be appointed both as guardian and conservator but separate petitions must be filed for each of these roles.
- What if antipsychotic medication is needed?
In order to consent to the use of antipsychotic medications on behalf of an disabled or incapacitated person, the guardianship petition filed by a proposed guardian needs to ask for that authority specifically. This type of guardianship is called a “Roger’s Guardianship.” The proposed guardian is required to provide affidavits from medical professionals that discuss the need for the medication and the effects of the medications and the ramifications if the medication is not authorized. The court must be provided with information so it can review whether the disabled or incapacitated individual would have chosen to take the medication if he or she was capable of evaluating the pros and cons of the medical treatment. A person’s religion, family situation, and past compliance with using antipsychotic medication are considered by the court in making its decision. In all Roger’s Guardianships the court appoints an attorney to represent the disabled or incapacitated individual.
- Does a guardianship need to be renewed each year?
No. Yearly care plans must be filed with the court but the guardianship will remain in place until some change in circumstances require a change. Each year a new treatment plan must be approved by the court in a Roger’s Guardianship, but this ordinarily does not require a court appearance unless the treatment plan has changed significantly.
- How do I know if a guardianship is appropriate?
If a child may need a guardian when he or she turns 18 then the parent should discuss it with the child’s physician or social worker or to an attorney concentrating in guardianships. In order to avoid a gap period during which a parent will not have the authority to make decisions that may be important for the health or safety of their child, this should be done between six months and a year prior to their 18th birthday so a parent can have a plan in place and time to implement it.