If you have an adult disabled child and want to be legally her or his guardian, I am the right person to call. I can definitely help you. You may be wondering what the process is or what needs to be filed. The process is laid out on the guardianship page of this website. This blog will give you additional information regarding your concerns on the matter.
Let’s assume you have a daughter named Maria. She is 17.5 years old and has severe cerebral palsy.
Things to consider before filing:
- You can file once your daughter turns 17.5 years old. Since Maria is already of that age, you can file now.
- You should contact an “estate planning attorney ” approximately two months before you would like the guardianship to be completed. Several case managers recommend getting started on the process 4-5 months ahead of time. I won’t recommend that. That is too early. Two months is better.
- You will need to set up an appointment with Maria’s doctor. The doctor will then fill out a specific report, which I will provide to you. The report asks the doctor several questions about Maria’s diagnosis, likelihood of medical improvement, and opinion on where Maria should live. It will only take the doctor about 5-10 minutes or so to fill out the report. This report gets filed along with the other papers.
- Consider looking into estate planning too. If Maria will be receiving SSI after she turns 18, you will want to take steps to protect all of Maria’s governmental benefits. A Revocable Living Trust, with a Special Needs Trust for Maria, will do just that.
What information you need to file the guardianship?
Here is a list of the kinds of information you need to file:
- Name, address and birthdates for Maria and the folks who want to be guardians.
- Other court cases involving Maria, such as a custody battle or a juvenile court matter.
- What assets Maria has.
- Why Maria needs a guardian.
- Maria’s diagnosis.
- Whether Maria should be allowed to drive.
- Whether Maria should be allowed to vote.
- Whether any of the people who want to be guardian has had a felony conviction.
Who else is involved with a guardianship?
There are 2 other players in this game, other than you and the Judge.
- The court investigator is someone who works for the court. It is the court investigator’s job to let the judge know: 1) whether the guardianship is needed; and 2) whether the people asking to be guardians are the right people to be serving as such.
The court investigator usually goes to your house or to Maria’s school or day program to do his or her investigation. The court investigator will want to meet Maria in person and at least talk with you, either in person or over the phone. He or she will then ask about Maria’s daily activities, your future plans for her, services she currently receives, services you anticipate she will need going forward, whether you have applied or will apply for SSI, and what assets she currently has. The court investigator will note his or her observations of Maria, her hygiene, her abilities or lack thereof, and her environment.
- Court appointed attorney. You have an attorney, so why shouldn’t Maria? Any time a guardianship is filed for an adult, that adult gets a lawyer. This is what’s required under Arizona law. The attorney will usually come to your home to meet with Maria. It is the attorney’s job to report to the Judge on how Maria is doing; whether the appointment should be granted, and whether you should be the actual guardian or not.
Do you really need to get guardianship?
The simple answer is “yes”. Once someone is an adult, i.e. 18, no one has the legal right to make decisions for that adult. This is regardless of how disabled that adult may be or how obvious that disability may be. However, as mentioned earlier, Arizona law has a different requirement. It is true that many doctors and day programs will deal with you, without asking for proof if you’re the guardian or not. But this is not always the case. There’s always that possibility of meeting one person who will question your authority over your adult child. If this happens, the hassles will begin if you aren’t the guardian. So it’s better to legally make yourself or other persons you trust to be the guardian.