If you are the parent of a child with disabilities, as I am, it is important to know that the law presumes that your child is competent to act on his or her own behalf when he or she reaches the age of 18. This means that your child is expected to make their own decisions regarding medical care, living arrangements, finances, personal care decisions, etc.
The law provides a procedure for obtaining guardianship and/or conservatorship over your child once they become an adult.
Guardianship refers to the authority to make decisions regarding the person of your child. Once a proper petition is filed with the probate court, your child will have to be served with the petition and a summons advising of the hearing date on the petition. Often, you can make arrangements to receive service without a sheriff’s deputy coming to the house. In my own situation, I took my daughter to the sheriff’s office to sign for the paperwork and she considered it a field trip.
An attorney ad litem will also be appointed for your child. The attorney ad litem is usually a local lawyer with experience in issues relating to adults with disabilities. The attorney ad litem is not an adversary, but will meet with you and your child to determine whether he or she thinks a guardian is needed and file a report with the Court.
A physician or psychologist will also be appointed to examine your child and make a report to the Court regarding their opinion as to the nature and extent of your child’s disability and whether it is their opinion that a guardian is required. Again, this person is not an adversary, but is engaged to help the Court obtain a full picture of your child’s circumstances, condition and need for assistance.
At the Court hearing, you, as the petitioner, will need to testify about your child’s background and disabilities, as well as his or her abilities. The physician or psychologist is typically not present, but their report is available to the parties and to the Court. The attorney ad litem will testify about their meeting with you and your child and make recommendations regarding the need for a guardian and any limitations that may be reasonable for the guardian. If you have additional witnesses that can help the Court get a clear understanding of your child’s circumstance, you may call anyone with first hand knowledge of your child to testify.
If the Court determines that a guardianship is appropriate, the Court will enter an Order to that effect and direct that Letters of Guardianship be issued to you by the clerk. The Letters of Guardianship is a document issued under the Court’s seal confirming that you are the duly appointed guardian of your adult child and the Letters of Guardianship is what you will present to doctors, adult program administrators and anyone else who needs verification that you have the legal authority to act on your adult child’s behalf. Thereafter, you will be required to file an annual report on the status of your child (called the Ward) on the anniversary of your appointment.
If your child has assets that need to be managed, you may also want to pursue a Conservatorship. Whereas the guardian is appointed to manage the person, a conservator is appointed to manage the property of a disabled person. The property and monies to be managed by a conservator is known as “the estate” of your child, referred to as "the Ward". As conservator, you will be required to file an initial inventory itemizing your child’s assets and income and will need to file accountings at least annually showing all income and expenditures during the preceding time period, as well as the beginning and ending balance. Depending on the type and value of the assets to be managed, the Court may require that a bond be posted by a commercial surety. This type of bond is essentially a written commitment by a commercial insurance company obligating itself to reimburse the Estate for any funds determined to have been misused.
Upon appointment, the Court will order that Letters of Conservatorship be issued and these Letters may be presented to a bank to open a conservatorship account or to establish authority to sell any of the Ward’s assets.
If you have any questions about the procedure for guardianship or conservatorship, please call or email at your convenience and I will be glad to discuss with you further. Walter E. Grantham, III (770) 951-8401 firstname.lastname@example.org