Establishing Guardianship and Obtaining a Declaration of Incapacitation

To establish a guardianship it is necessary to file a request for "Appointment of a Guardian of an Incapacitated Person" in the District Probate Court in the county in which the individual resides. The court then sets a date for the hearing. The individual with a disability should have their own legal representative whose sole interest is ensuring their rights are protected during this process. This legal council will be present at the hearing, conduct any necessary questioning and receive notice on behalf of the individual.

Detailed documentation will be needed to show that your child is not mentally capable of becoming totally independent.

The family will need to hire two attorneys, one for themselves and one for their child. A judge will review the entire medical and educational evidence needed, hear arguments from your child's attorney as well as your own before making an Incapacitation Declaration. Once the judge is satisfied all legal requirements have been met a Declaration of Incapacitation will be made and signed. The court can then appoint a Guardian(s) at that time.

Full Guardianship over an individual with disabilities is not always necessary. It can also be reduced later as circumstances warrant. A limited guardianship or other legal means of providing informed consent may be more appropriate. This should be discussed at length with your legal council. There are different types of limited guardianship, including medical, habitation and training; residential and financial which may be more appropriate. Most often these are awarded according to the needs and rights of the individual. A full discussion with your legal representative and those familiar with your child's capabilities may assist you in deciding which of the above noted options would be best. Your child's wishes must also be taken into consideration. They should be included in any meetings involving decisions for their future, when appropriate.

There are many misconceptions regarding the responsibilities of Legal Guardianship. It does not mean that you must keep your family member in your home. It does not mean that you take the obligation to support that person financially or become their "forever" caretaker. If the person for whom you seek guardianship has some decision-making abilities, you will not even be granted guardianship over all aspects of that person's life. The child's rights and privileges are not taken away with the guardianship. A guardian is appointed only to "Protect the rights, interests and well being of said person". Guardianship can be changed at ANY time, through appropriate legal channels, should the need arise.

There are many agencies that can help you through the process of Guardianship in most states. See your state directory for the nearest Disability Law Center, Office of Public Guardianship, Or Guardianship and Advocacy Providers.

(Check the RESOURCE LINKS section for Disability Law Offices in your area)

One Last Note Regarding Guardianship.

Be sure to pick up SEVERAL copies of the notarized Guardianship Determination documents BEFORE YOU LEAVE THE COURT HOUSE! Place at least 2 copies in your family safe deposit box and keep a couple of copies in your home file. After the Clerk of the Court files them it is much more costly and time consuming to get new copies issued.

You will need to give copies of these documents to your child's medical care providers, send a notarized original to the Social Security Administration, fax copies to billing companies, show to Emergency Room medical staff, school officials, obtain Military ID cards for disabled dependents, etc. in order to prove you have the authority to assist your child with their legal needs.