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As your special needs son or daughter reaches the age of the majority, 18, parents be aware of the need to begin transition services and obtain a guardianship so that you can continue to have access to information that would otherwise be confidential, make decisions on behalf of your disabled child, and receive State and/or Federal government benefits on their behalf. Most parents do not realize that upon reaching the age of 18, a disabled student is emancipated and legally able to make his or her own decisions, until a court deems otherwise. This means that theoretically, your son or daughter’s school can bar you from information about your child unless you have a guardianship in place. You will need an order of guardianship to attend to your child’s financial, medical, and educational matters.
You can file for guardianship as early as six months prior to his or her 18th birthday and should do so as soon as possible. While temporary guardianships are available in the event your guardianship application is not resolved prior to his or her 18th birthday, a plethora of hiccups can result from not being prepared ahead of this big day. Guardianships are not cheap, but necessary. They are not decisions Courts take lightly, with many Statutory probate courts assigning Court investigators to conduct due diligence and determine what is in your child’s best interest. In my experience, the “best interest of the child” standard in Guardianship is taken much more seriously than that of Family Court, though the definition is essentially the same. Due to the risk of exploitation and abuse inherent with an intellectually or physically disabled adult, the Courts will scrutinize applicants much more carefully than one would be in Family Court.
Guardianship will usually require you to go to court. If a guardian of the estate is appointed, a bond is required. The Judge will appoint an Attorney Ad Litem / Guardian Ad Litem to protect your son or daughter’s interest and serve as their lawyer or guardian ad litem. You must serve not only interested persons who do not execute waivers, but you must serve your child by constable. Very methodical processes are in place to ensure that those whose rights are being taken will not be victimized by proposed guardians. While guardians typically obtain guardianship of the person and estate of the ward, Courts have been known to Order one, the other or both and may separate the guardianships between persons where the need is apparent.
As soon as reasonably possible and ideally, upon filing, a certificate of medical examination (CME) or a document establishing intellectual disability, is required to be submitted to the Statutory Probate Court. As part of the evaluation process, the physician answers specific questions about the person’s mental and physical capabilities. The physician gives his or her professional opinion about whether the person has capacity to make his or her own decisions, vote, drive, marry and carry out other specific activities. Once a guardian is appointed, there are ongoing legal requirements which may require the assistance of an attorney. A guardian must file annual reports and/or annual accountings
As a full guardian of the person, you have the legal right and the responsibility to make all personal decisions for the ward. The guardian decide where the ward will live, whether to limit contact with family and friends, medications the ward is to receive, the personal rights that will be afforded the ward, medical and/or psychological treatment to be given, educational decisions. By assuming guardian of the person and estate, you should be prepared to make all decisions on the ward’s behalf in their best interest for the duration of the guardianship, which is typically indefinite. Be careful not to get caught behind the eight ball and contact an attorney as soon as possible during your child’s senior year to begin transition planning. [wpResize]