Q. ”Do I need guardianship for my child with special needs?”
A. Guardianship is a topic that has received increased attention in recent years. In the past, it was generally thought to be the lone option available for persons with disabilities (PWD) who required decision-making supports beyond what could be informally delivered by family and friends. With good intentions, families were often strongly encouraged by schools, hospitals, banks, and other institutions to seek guardianship over their loved ones once they turned eighteen (18). It was nearly always assumed to be in the best interests of the PWD due to a general belief that they required protection from harm above all other considerations. However, this assumption is gradually changing in light of the growing body of data regarding the potentially harmful implications of unnecessary or over-restrictive guardianships, and the growing number of PWD who are safely and successfully utilizing less restrictive alternatives such as agency agreements (e.g. powers of attorney) and/or a supported decision-making agreement to receive the support(s) they need while largely retaining autonomy over their lives.
This is not to say that guardianship is definitively not appropriate for your loved one – it very well may be. However, the decision of whether to seek guardianship should be a highly deliberative and collaborative process, with due consideration given to the significant loss of fundamental individual rights that is necessarily involved. In many respects, the legal rights of an individual subject to guardianship are indistinguishable from those of a child. All of us want to see our loved one(s) fulfill their inherent potential and live meaningful lives as independently as possible, and that is why it is critical to thoroughly assess whether available less-restrictive alternatives may be appropriate prior to seeking guardianship.
Thankfully, there are now available informational resources published by DSI partner organizations to help PWD and their families learn more about guardianship and its less restrictive alternatives. The links to these resources are available below. Ultimately, if you decide to move forward with pursuing guardianship, it is recommended that you seek out an attorney who is knowledgeable about both guardianship and special needs planning.
Arc of Indiana – Guardianship & Alternatives to Guardianship: https://www.arcind.org/future-planning/guardianship/
Indiana Disability Rights – Supported Decision-Making: https://www.in.gov/idr/sdm/
Ph: 317-722-5564 (fax)