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As a parent of a child with an intellectual or developmental disability, you are the expert in the care of your child. You understand the complexities of coordinating medical, educational, and various other needs that your child requires. You are the decision maker, the advocate, the researcher, and the supporter.
However, when your child turns 18, he is legally an adult and you will no longer have the legal rights to be the decision maker. If your child has intellectual or developmental disabilities, you may still want to be able to be present in making decisions, accessing medical information, or advocating for your child to receive the assistance that she requires.
Although you have done this in the past and are still the parent, the law finds an adult 18 and older competent to make decisions, unless it’s proven otherwise. The existence of a disability does not automatically “prove otherwise.” If you feel it’s in your child’s best interest for you to continue to be the decision maker, then you can file for guardianship.
What is Guardianship?
Guardianship is a legal relationship between a competent adult (you) and an adult who is not able to make decisions on his or her own (your child). A judge also has to find that your adult child is incompetent. The guardian becomes the person who makes the decisions, exercises the right that the child cannot, and advocates for the child’s best interests.
Who Requires a Guardian?
Adults who require a guardian can have either an intellectual or developmental disability that causes them to be unable to make decisions or take care of day-to-day personal needs, such as, shelter, food, medical care, and social services.
There are two types of guardians: Guardianship of Person and Guardianship of the Estate, and each one has different rights and responsibilities. Your child may require one or both types. If your child requires both types, you may serve as both.
Guardianship of Person
Guardianship of a person is necessary when your child cannot arrange for his personal needs to be met: food, shelter, medical care, and social services.
Your role is to make medical and personal decisions for your child. You are not responsible for managing finances or financially supporting your child, but you can advocate for assistance and help apply for programs to ensure that your child has the means to support herself.
Guardianship of the Estate
Guardianship of the estate is necessary when your child cannot handle his own finances. Your role is managing and making decisions about the property and assets of your child. You are not responsible for financially supporting your child.
How Do I Become the Guardian of My Child?
- Start the process in the year before your child turns 18! You can obtain guardianship when you child is 17 years and nine months old.
- You may want to contact an attorney to represent you in the process. There will be court and legal fees.
- Complete the paperwork to petition the State for guardianship by going to www.wicourts.gov/forms1/circuit/index.htm#guard. This website has a list of all the legal forms that you will need.
- Obtain evidence that will support your child’s need for guardianship, especially a written examination report completed by your child’s medical doctor or psychologist. There is an official court form for this report on the website listed in the previous bullet point.
- File the petition in your county’s circuit court.
- The court will appoint a Guardian Ad Litem (GAL). In Wisconsin, a GAL is a lawyer and objective party who helps the court determine if your child requires a guardian and if you are the appropriate person to be her guardian. The GAL is representing the best interest of your child. A report will be provided to the court based on interviews and evidence gathered by the GAL.
- If the GAL recommends a guardian and your child does not agree, then the court will appoint opposing counsel to represent your child.
- A hearing will take place. You and your child will both be present. The legal counsel representing you will present evidence that your child requires a guardian. The GAL will present his case regarding your child’s need for a guardian, and if so, whether you are the right person. At this hearing, the court may decide if your child needs a guardian. If so, the judge will appoint the guardian and enter the type of guardianship.
- The judge will issue two certified documents called Determination and Order and Letters of Guardianship (often referred to just as “letters”) at the hearing. The Determination and Order will list the specific responsibilities that you, as the guardian, have. You will need to request additional copies, because certain institutions (like banks) may want to keep a certified copy on file. There is a fee for additional certified copies.
- If there is a disagreement about guardianship, the judge may request a trial. Your child may also request a jury trial.
Once decided, the guardianship remains effective until the court orders otherwise. There will be an annual review. At any time, others can petition the court for a modification or termination of the guardianship, including your child.
Norma Schoenberg, a Wisconsin foster and adoptive parent, cautions that, “it’s a very scary place to be at first, because very little knowledge is given to you, as a foster or adoptive parent.”
Even though parenting is a responsibility for life, your legal rights as a parent are drastically reduced when your child turns 18. If you have a child who might need a decision maker after he or she turns 18, be proactive and start the process early. Talk to your children about guardianship and the process. Find out if this is something that they understand and ask their opinions. If possible, try to talk to other parents who have gone through the process.