My Services: Guardianship
Why you need guardianship when your disabled child is 18
Several weeks ago, a new client called in a panic. Her 19-year-old son with Down Syndrome needed surgery, but the hospital and surgeon would not schedule the operation because she was not her son's legal guardian. They didn't seem to care that she and her husband were her son's primary caregivers and understood his medical needs better than anyone.
Until she talked to me, my client didn’t know that she had stopped being her son’s legal guardian when he turned 18. In Massachusetts, a person is presumed to be legally capable on reaching adulthood regardless of his level of cognitive functioning.
This can cause problems if a person has an intellectual disability (which we used to call mental retardation). If a medical provider feels that the patient cannot give "informed consent" to a procedure—which generally means that he cannot understand the risks and benefits—a legal guardian must sign off on the procedure.
The surgery almost had to be postponed while my client and I scrambled to get the necessary medical evaluations and bring them to court so a judge could approve her temporary guardianship.
In Massachusetts, obtaining guardianship for a person with an intellectual disability includes some time-consuming steps. To file, you need evaluations from three clinicians—a licensed social worker, a licensed psychologist, and a physician—all of whom have evaluated your child within the past 6 months and will attest that he needs a legal guardian. Then after the evaluations are filed with the court, there is a waiting period—usually six to eight weeks—while legal notices are given to your child and other family members. If there is an emergency, the court can act sooner by appointing a temporary guardian—but the three evaluations are still required, and the court may also require you to notify your child of the hearing.
The guardianship process is likely to go more smoothly if you have any attorney. If your child receives services from the Department of Developmental Services (DDS), the area office might handle the legal paperwork, but you can't count on it. If you hire a private attorney, you can expect to pay anywhere from $1,500 to $3,000 for a basic guardianship.
The cost may be higher if your child takes anti-psychotic medication, because you will need a so-called Rogers guardianship. The court will appoint an attorney for your child, further delaying the process.
Fortunately, my client’s son's operation took place on time, and a few weeks later he was back in school. Later the court made her the permanent legal guardian. This will allow her to manage her son’s future medical care as well as sign his IEP and advocate for the services he will require when he finishes school.
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