What is Guardianship?
Guardianship is a legal arrangement used when someone can no longer make or communicate safe and sound decisions about their personal affairs or property, or is at risk of fraud or undue influence. Because guardianship can significantly impact an individual’s rights, it should be considered only after other alternatives have been tried and found lacking or are not viable.
For many families with special needs children, the concept of guardianship is straightforward. If your child is unable to make informed decisions regarding their medical, educational, and financial needs, you can apply to become their legal guardian.
What Are the Responsibilities of a Guardian?
The responsibilities of a guardian can differ depending on whether you are a limited or general guardian. These responsibilities may include making decisions about healthcare, education, and other aspects of the person’s life. The court’s guardianship order will clearly outline which rights remain with the individual under guardianship.
I am the legal guardian of my adult disabled child. What happens to the guardianship of my child after my death?
You can designate a guardian in your will. By naming someone as the guardian of your child, you ensure that your preference is documented. However, this nominated person will still need to be formally approved by the court after your passing.
Additionally, you can appoint a co-guardian while you are still alive. This involves starting a new guardianship process with the co-guardian as the petitioner, which unfortunately may require you to step down as the current guardian and start the guardianship process from scratch. This approach helps ensure that, upon your death, the co-guardian can seamlessly continue fulfilling their duties.
Are there any alternatives to guardianship?
Here are some alternatives to guardianship. These alternatives allow for more autonomy for the individual but may not provide the same level of legal authority or protection as guardianship.
Supported Decision Making (SDM)- allows an individual with a disability to make choices and decisions about their life with a designated person or team of trusted supporters. They can stay in charge but have help when needed. However, Massachusetts does not currently have a SDM law. This means that if your child signs an SDM agreement, the school, medical providers and state agencies don’t have to honor it.
Durable Power of Attorney– A durable power of attorney (DPOA) for property is a legal document that grants one person the legal authority to handle the financial affairs of another. A person can give the authority to deal with their financial matters. However, this document can be revoked at will. The person can take away our authority at any time, without any valid reason, without any prior notice.
Health Care Proxy– A health care proxy, is a legal document granting decision-making powers related to health care to an agent; it may generally provide for the removal of a physician, the right to have the incompetent patient discharged against medical advice, the right to medical records and the right to have the patient moved or to engage another treatment. Just like a DPOA, a healthcare proxy can be revoked at any time, which is why it may not be helpful if the person you care for has mental health issues.