mother polar bear sleeping with baby
Suzanne Shaft

Thinking about guardianship for your special needs child

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 the website of your county probate court. I know that “court” might sound a little scary, but I have only encountered very nice, very helpful people during my time as guardian for my boys. How do you know if you need to take guardianship? Imagine what would happen if, for example, your child had to be rushed to the hospital and they were 18 or older (or whatever age your state considers a person to be an adult — but for our purposes, we’ll use age 18). 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, and they absolutely don’t have to let you sign off on their care unless you are their legal guardian. 

If you are taking 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). You can file forms separately with Medicaid and Social Security to be able to be an authorized representative for your child, which is what I would suggest doing. If at any time you have questions about filling out the guardianship forms you can consult an attorney (ones who do special needs trusts) or many probate courts have a help desk that can 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 one would be best for your child. I would do this when your child is 17-1/2 just so you will know what you need to do, and be able to give yourself plenty of time to get it done. In Ohio, guardianship for a disabled person has a terrible name that I wish they’d change — Guardianship of an Incompetent Adult. There will be a section on the court website that will give a listing and a link to all the forms you must fill out and file with the court to obtain guardianship. In these forms, you will need to have a Statement of Expert Evaluation done. You can take this to your child’s neurologist, primary care doctor, or whomever is treating your child for their Autism. This evaluation generally has to be done within 3 months of the date you intend to file for guardianship, but I would get it done as close to the date you plan to file for guardianship as you can. I would plan on filing for guardianship as close to your child’s 18th birthday as possible, as the guardianship will not be processed and granted until your child is of legal age. 

Once you have all the forms filled out, it’s time to file. In non-pandemic times, you will need to go in person (and that 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 have the fee waived, but that is an additional step which 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 come to visit your child and explain their rights to them. Sometimes this is a no-brainer…if you have a non-verbal child, well, that’s a pretty good indicator to the Investigator that Guardianship is needed. However, if your child is able to say they do not want to have a guardian, that can potentially cause a more in-depth court hearing with the judge in which your child will be allowed to 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 or not). Therefore, if your child can talk and is able to understand at least somewhat why guardianship is needed, you may want to explain it to them beforehand. 

You will get a letter that will tell you when you need to appear for the hearing. Since guardianship was uncontested in my boys’ cases (most often in cases of developmental disabilities it is uncontested), it was more informal. You watch some videos on what your duties as a guardian will be, and 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 keep one with you at all times in case you’re ever in a situation where you need to prove you are your child’s guardian. The others I would put in a safe place. 

After that, you will need to fill out a Guardian’s Report and a Plan for Guardianship every year, due by the anniversary of the day you took guardianship of your child. 

I know the prospect of court and filings can seem daunting, but 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 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.  Join Vitalxchange today to directly engage with Suzanne!

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