If you have a child with a disability, planning early and ahead for their future transition into adulthood is very important. In this article I want to discuss conservatorships and guardianships for a child with disability, both of which are legal arrangements that provides oversight to protect and enable your child when done properly. Both have a lot in common, and for the purposes of this article, the terms guardians and conservators shall be used interchangeably. However, there is a right way to be a guardian (or conservator) and a wrong way. Let’s discuss the differences. I wanted to provide my perspective as a parent who has done thorough research on the topic and gone through the process for my sons (I am not a lawyer and once you decide the path forward, you will need a good one. Vitalxchange has some great legal support coming soon!)
Each state has its own rules for guardianship and/or conservatorships
The best way to find out what those rules are is to look at your county probate court’s website. Generally, conservatorships provide authority to control another person’s financial decisions; while guardianships give someone control over the personal, day-to-day decisions of their ward (the person for whom they are serving as guardian). Here is a article I wrote that takes a deep dive on Guardianships and the process I went through.
If you are dealing with someone who is eligible for Medicaid, a guardian or conservator of the person’s estate is generally not needed. Therefore, for our purposes, we will discuss guardianship or conservatorship of the person. This means the guardian has legal custody of the person. The guardian protects the person and makes decisions for them.
However — and this is a big point that is often not discussed in recent conversations in the media — this does NOT mean that the guardian can do whatever they want and disregard the wants and needs of their ward. Quite the contrary — guardians must always consider what is in the best interest of the person they are guarding.
If the ward is able to discuss things with their guardian and pick options they would like, the guardian must take this into account. For instance, as guardian of my 21-year old son, I cannot tell him he needs a job, pick one for him and make him do it. Instead, I can ask him if he wants a job. If he does, it’s my job to connect him with people in my county that can help him find a job he will like doing (the local DD Board, any governmental agencies that help disabled people secure employment in your state, etc.). I also have a 20-year old with a lot of needs. Working a job might not be in his best interest. But, I can find other things for him to do, like attend a day program so he can get out of the house and interact with other people. These decisions may or may not be what I would choose for them as their mom — but they are what is in my boys’ best interests.
Guardians and conservators are both accountable to the court
In my state, there is annual paperwork to file by the anniversary of guardianship. You have a Guardian’s Report (you write what happened during this past year) and a Guardian’s Plan (what you intend to help your ward do this coming year). A medical assessment is always required before guardianship is granted by the court. In some cases, the court may ask for an evaluation by one of their approved doctors. You can ask if you can have a doctor of your choosing also evaluate the proposed ward. In any event, guardianship is not ever granted unless a doctor (at least one — maybe more depending on the case) signs off on its necessity. Proposed guardians must pass both a state and federal background check before they can be granted guardianship by the court.
Can someone object to having a guardian or a conservator?
Yes! A proposed guardian must file paperwork to become a guardian of a proposed ward with the court. There is a filing fee you must pay for this, although you can ask if you can have it waived in some cases. A court investigator is sent out to meet the family and talk to the proposed ward. It is at this time that the proposed ward can voice any objections they have to the guardianship or conservatorship. If that happens, they are allowed to have a lawyer argue their case against guardianship or conservatorship. Even if guardianship or conservatorship is granted, a ward can challenge it in court if they feel their circumstances have changed. Since guardianship or conservatorship is never granted without a doctor’s evaluation, they are generally not dismissed without a doctor’s evaluation.
Guardians and conservators cannot charge for their services without the court’s approval
Because my kids have Medicaid eligibility, I do not need to be the guardian of my kids’ estates (because they don’t have one). I have no reason to charge for my time. I do not believe the court would approve such a request, nor do I think they should.
Guardianships are not a reason to deny basic rights to the ward
They still have the right to vote, to come and go from their homes, make choices for their medical care, etc. — guardianships do not take this away. Instead, it allows the ward to be a part of the decision. A guardian’s job is to make sure that the ward is not making an unsafe decision. Guardians must do their best to make sure that a ward is not being abused or victimized by others who may want to take advantage of them. As long as they are not endangering themselves, wards are supposed to have a voice in decisions made for them. Good guardians and conservators do this.
Supported Decision Making – an alternative to Guardianship and Conservatorship
Yes – but it is a good idea to make sure that these options are recognized by the State you live in. Supported decision-making is a good option (and one that fellow VitalGuide Jennifer Rainey, wrote about) especially for those who may not have as many needs. But supported decision-making is not recognized in every state at this time. This means that if your child or the person you are supporting needs to make a decision about healthcare, finances, etc.
If supported decision-making is not legally recognized in your state, you could be prohibited from helping that person make that decision. The good news is, there is a push underway in Congress to recognize these options to legal guardianships and conservatorships. Making them legally and widely recognized would be a great option.
Important closing words
You know your child better than anyone else. You also know what is best for your family. Talk to a lawyer or a representative of your local probate court. Find out what your options are. Weigh the pros and cons of each option and then decide what is best for your specific situation. People of all abilities should be empowered to make decisions for themselves, and also have access to assistance in making them. It can feel overwhelming or even daunting, but with the guidance and support, you can get it done. As always, I am here to help you sort things out.