Episode 126 of The On-Air Advocate
Host: Tammy Flynn
Guest: Attorney Davis, Special Needs Law
Guest background: Marquette Law School graduate class of 2011. Attorney Davis has a brother five years younger who has Spina Bifida.
Facebook: @Davis and Plato
Topic: Step By Step Guardianship Process + Alternatives
This is valuable information for when a family member begins to look into options for guardianship for their child and or young adult with a disability. Two of the most common questions to ask during this process is why I am seeking guardianship, and should I hire a lawyer to help you navigate through the process? The answer is yes you should. Lawyers, in general, are considered “ issue spotters.”
Attorney Davis recommends that parents start as early as 14, with their child’s IEP. The earlier you start identifying any issues or gaps you may see at the time will only help the parent better determine what he or she may need later on. This may also help the parent in determining the best options for you and your child when it comes to the type of guardianship your child may need.
It’s also important to remember that that each issue you address about guardianship is separate from others. That’s why it’s important to make a plan for all decisions made during the process. This will also help your lawyer in answering the question, Can we provide options to help their child in the area of self-direction?
Attorney Davis also suggests providing training and assistance where there are gaps in self-direction. The earlier this can happen, the better.
Also, get your child’s pediatrician involved in the conversation as well. They know their child better than a court-appointed doctor would. Especially, if the child is of legal age, and the courts are involved with determining guardianship. In particular with the issue of adult self-care. When that child is a legal adult, we’re no longer talking about guardianship, but rather the care and custody of the individual. At the age of 18, he/she is now their own person. Attorney Davis strongly advises that if a client has decided upon the right type of guardianship based on their situation, with the support of people they trust behind them (designate a supporter or supporters.). Then attorney Davis suggests filing for guardianship at 17 years, 9 months. You have 90 days to file with the court.
Some of the complications you can run into with guardianship after the age of 18.
Just so that our readers are aware, there are a total of nine stages of supportive decision-making areas that a guardian can help with. That will require authorization to release at 18 and on.
Without a plan for guardianship, the parent does not have control over final choice in any areas of their adult and or child’s life.
Divorced parents and guardianship
Divorced parents run into the issue of who should be the primary guardian and who should be the backup? This is called, the co-guardian.
It’s also important to note that some guardianships may prevent the person from being able to do certain things like vote or get married.
The different levels of guardianship
Limited Guardianship Supported decision-making agreement, no court oversight needed.
A representative pay-e (the parent) for the estate if the estate is 50 thousand or more. This is known as small estate exception management.
Power of Attorney for your finances and healthcare options. (which be authorized) And have a witness present.
Durable Power of Attorney, that acts as a guardian.
Disability is the only protected class that anyone can find themselves a part of at any given time in their lifetime.
Tammy’s Final Thoughts
~ Tammy Flynn, The On-Air Advocate
Connect with Tammy on Facebook @theonairadvocate.