Guardianship & Adult Children with Developmental Disabilities
As our special needs children grow up there are new issues that we parents must address. One of the issues receiving some new attention lately is that of Guardianship. Actually, the laws governing guardianship have been in place for decades, but our society has largely ignored the need for guardianship for adult children in years past. Before attending a workshop in 2003, I was unaware of the need to file for guardianship of my own disabled adult child. I learned however that parents are the legal guardians of their children only until they reach the age of 18. When your child turns 18 she is legally an adult and presumed capable of exercising rights, making decisions, and accepting adult responsibility in full. If your disabled adult child is unable to care for and make financial and medical decisions for himself you will need to file a petition for guardianship with your county probate court. Since any interested person has the right to petition the court for guardianship of a disabled adult, my husband and I decided to file as soon as our daughter turned 18.
Guardianship gives you the legal right to make necessary decisions on behalf of your adult child. It allows you to oversee or personally be responsible for the care, custody and control of an individual the court considers incompetent. Illinois law states that a guardian may be appointed for a “disabled person”, but there are specific criteria for evaluating whether a person is disabled for purposes of guardianship. The court appoints guardianship for those whose mental or physical disability renders the individual unable to manage his person or estate.
It may be helpful for you to secure an attorney to file for guardianship of your adult child. In the , any individual can represent himself in a legal proceeding, but the complexity of the court system can be overwhelming to the inexperienced lay person. If you choose to represent yourself, your circuit clerk’s office should have the forms that will need to be filled out in order to file your petition. Keep in mind, though, that the clerk’s office cannot give legal advice. They will only be able to give you the blank forms. If you plan to do this, I’d encourage you to pray asking the Lord to go before you. The clerk my husband spoke with was very kind and helpful.
The most important form to be filled out will be the one completed by your physician. This is a point in time where it is beneficial to have a family doctor who knows you and your child well and appreciates the quality of care your family provides for your special child. Knowing how busy my daughter’s doctor was, I made copies of all the various diagnoses over the years and wrote up a brief synopsis based on the questions on the medical report form the court required. Our Doctor was very appreciative of the effort I had put into saving time for her and her staff. Keep in mind that judges are not doctors. Before a court will appoint a guardian, it must have a clear recommendation from a qualified medical professional that guardianship is necessary for the welfare of your child.
The time frame for the court process from the initial hearing could take a number of weeks. It will be different based on the county you live in and how busy the courts are. If you are securing an
attorney, the initial hearing date will be worked out between the attorneys office and the court clerk. If you are filing for yourself, you will be given a court date after all the required forms are completed and your petition is filed. Within fourteen days of your court date your child must be served with a summons, notice of the hearing, and a list of his rights. These papers must be served personally on the child, and you cannot be the person to serve them. We were informed that our county deliverers such summons by a county sheriff’s deputy but many counties require you as the petitioner to arrange for a deputy to make this service. This may sound threatening to the child, but most sheriffs’ departments have a deputy who is experienced with handling these types of sensitive situations. Sometimes they will ask you to come to the station, and sometimes they will want to come to your home. Our daughter thought it was quite exciting to have a police officer ask to see and give her a “special” paper. Knowing your child, you may want to prepare her with some role playing.
Prior to the court hearing, the judge will review the petition and the physician’s / psychologist’s report. In some counties the court will appoint an attorney to serve as Guardian ad Litem (GAL) to act as an independent party to review the circumstances of the guardianship. The court could also order additional evaluations to determine competence. Most counties do not have funds to cover such expenses, so if the court does appoint a GAL, or order more testing, then you will probably be required to pay the costs for these services. If a GAL is ordered, he will report his findings to the court and the judge will review all information before making a final decision. Keep in mind that these are only options for the court not requirements. In most family guardianship situations, such as was our experience, they are unnecessary. Trust the Lord to go before you as you cover your petition in prayer.
Based on our experience, I recommend you arrive in the court room early and plan on being there for some time. Once the judge arrives, the court will begin calling the cases forward. We noticed that the judge first called all of the cases that were represented by an attorney. When called, the attorneys moved forward quickly and stood before the judge. As we watched this process we prepared our plan. When our case was called my husband quickly moved forward, while I got our daughter on her feet and moving toward the judge’s bench.
We were pleased that, while all of the cases involving an attorney were required to set a second court date, the judge told her clerk all was in order and she would approve our petition without further appearances. We were also amazed, after watching the judge moving briskly through each case, that she stopped and spoke kindly to us and even asked me to communicate to our daughter that she “is a very lucky girl”. As I later thought about why, the only answer I could come up with was our appearance and behavior. We were clean and well dressed, we greeted the judge with smiles and respect, and our daughter confirmed her doctor’s supportive report by appearing happy and well cared for. We definitely stood out from amongst the other families that were in courtroom that day. Most of the circumstances that bring families in front of a court are not pleasant. Judges spend most of their days hearing about divorces, abuse or neglect, and other conflicts. Most judges enjoy helping out a loving family who is caring for a special child, and they enjoy seeing healthy relationships being strengthened.
After the judge appoints guardianship the court clerk will file the papers and the court will issue letters of guardianship. This is your legal documentation giving you the authority to act on behalf of your adult child and it should arrive in the mail within a few weeks of your hearing. If you need it sooner, you can usually pickup the paperwork in person – sometimes even the same day that the court makes its appointment. This appointment is permanent for the life of the ward or until the court finds him to be competent. The guardian may resign but is legally responsible until a successor guardian is appointed by the court. As we age, we must, therefore, consider who will assume guardianship when we are no longer able to execute this responsibility. For this purpose you may request and file “Designation of Standby Guardian”.
The costs of the guardianship process will vary depending on the fee your county court has established, your local sheriff’s charge for service, whether you employ an attorney, and whether the judge appoints a Guardian ad Litem. Your county clerk will be able inform you as to the court costs when you call or pick up your petition packet and you can call the sheriff’s office to find out the cost of their service.
There are two basic types of guardianship, guardianship of the person or guardianship of the estate. The parent who is appointed guardian of the person will have authority over the personal care of their adult child. This will enable them to decide such things as where their child will live, if and where they will work, and what medical care their child will receive. Guardianship of the estate is necessary when an individual is unable to manage personal property or financial obligations. This type of guardianship is usually unnecessary if a ward has few assets, but it may be required if the child receives certain financial benefits such as most types of private insurance, annuity, or inheritance income. Most government disability benefit programs do NOT require guardianship of the estate
If you believe your child needs a guardian of the estate to assist with financial matters, you may want to look into creating a “Special Needs Trust” instead. There are many benefits to such a trust that cannot be provided by a guardianship. A Special Needs Trust is another one of those “new issues” that we must consider as we plan for the care of our disabled child after our death. But this is a topic that is best addressed by a lawyer who specializes in Special Needs Trusts. This will have to be an article for a future issue of the Alliant.
For further research see:
http://ilga.gov/legislation/ilcs/ilcs.asp (<= scroll down and click on 'CHAPTER 755 ESTATES', then click on '755 ILCS 5/ Probate Act of 1975' and finally click on 'Article XIa - Guardians for Disabled Adults' ; (this is the actual statute that governs guardianship in Illinois)
Thanks to Jeffrey Lewis, Attorney at Law, for his helpful suggestions and resources.