Suzanne Shaft

Thinking about guardianship for your child with a disability

Suzanne Shaft

Thinking about guardianship for your child with a disability

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The why, the when and the how of guardianship for your child

The rules of Guardianship may vary a little bit from state to state. You can find out what your state’s rules are by looking at your county probate court website. I know that “court” might sound a little scary.  However, I have only encountered very nice, helpful people during my time as guardians of my boys.

How do you know if you need to take guardianship? Imagine what would happen if your child was rushed to the hospital.  And they were 18 or older or whatever age your state considers a person to be an adult. Could they make informed decisions about their own care? Because at that point, a hospital or doctor’s office doesn’t have to let you accompany your child. They absolutely don’t have to let you sign off on their care unless you are their legal guardian. 

If you take guardianship of your disabled adult, they will likely be eligible for Medicaid and Supplemental Security Income (SSI). Therefore, you probably only need to apply to be a guardian of their person — they will not have an estate (they won’t own property or have monetary assets).

File forms separately with Medicaid and Social Security to be authorized representatives for your child. Suppose at any time you have questions about filling out the guardianship forms. In that case, you can consult an attorney (one who specializes in trusts for adults with disabilities), or many probate courts have a help desk to help you fill out the forms (the latter service is free).

So, how do you go about obtaining guardianship? First, go to your county probate court’s website and read up on the types of guardianship your state offers and which would be best for your child. Do this when your child is 17-1/2 so that you will know what to do and give yourself plenty of time to finish it.

In Ohio, guardianship for a disabled person has a terrible name that I wish they’d change: Guardianship of an Incompetent Adult. A section on the court website will give a listing and a link to all the forms you must fill out.  Parents file these with the court to obtain guardianship.

You need a Statement of Expert Evaluation for these forms. You can take this to your child’s neurologist, primary care doctor, or whoever is treating your child for Autism. Complete this evaluation within 3 months of the date you intend to file for guardianship.  However, complete this evaluation as close to the filing as possible. Plan to file for guardianship as close to your child’s 18th birthday as possible The court does not process and grant guardianship until your child is of legal age. 

Once you fill out the forms, it’s time to file. In non-pandemic times, you will need to go in person (which may still be required — check with your county probate court for Covid-19 protocols) to the court with all the original paperwork. Someone will take your application, check to see that it is all completed, and they will give you a case number. You will then need to pay a filing fee. In Ohio, that’s $280 with a 3% upcharge if you pay by credit card.

You can apply to waive the fee, but that is an additional step that requires some additional time to complete. It is not guaranteed that you will get the fee waived. If you choose to do this, call the court and ask what you need to do for that process so you can plan accordingly. You will then need to have background checks done. I got this done all in one trip, as the Clerk of Courts office can do it and is usually close to the probate court. That costs $32, is not refundable, and can take anywhere from 3-30 days to complete. 

Next, a Court Investigator will visit your child and explain their rights to them. Sometimes this is a no-brainer.  If you have a non-verbal child, that’s a pretty good indicator you need an Investigator. However, suppose your child is able to say they do not want to have a guardian. In that case, that can potentially cause a more in-depth court hearing with the judge. Your child can make a case against having a guardian.  If your child objects, it may come down to whether or not the Investigator sees a need for guardianship. Therefore, if your child talks and understands at least somewhat why guardianship is needed, you may want to explain it to them beforehand. 

You will get a letter telling you when you need to appear for the hearing. Nobody contested guardianship in my boys’ cases.  Most often, in cases of developmental disabilities, it is uncontested.  So my hearing was more informal. You watch some videos on what your duties as a guardian will be. You will receive a handbook that tells you what you need to know. A magistrate will come in and sign a letter approving the guardianship. They will usually give you 3 copies of this letter. I would always keep one with you in case you’re ever in a situation where you need to prove you are your child’s guardian. For the others, I would put them in a safe place. 

After that, you must complete a Guardian’s Report and a Plan for Guardianship every year.  These are due by the anniversary of the day you took guardianship of your child. 

The prospect of court and filings can seem daunting.  However, if your child needs guardianship, you will be doing them a huge favor by becoming their guardian. 

About the Author

Suzanne is a mom of children with Autism and other disabilities.  She has been caring and advocating for them for over 19 years.  She is passionate about helping parents navigate all aspects of disability parenting, including therapy, advocacy, and education.  Join Vitalxchange today to engage directly with Suzanne!

About the Author

Suzanne is a mom of children with Autism and other special needs and has been caring and advocating for them for over 17 years. She is passionate about helping parents navigate all aspects of special needs parenting including therapy, advocacy and education. Her expert storefront is called Plan A-Z

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