Guardianships For Adult Children With Disabilities
By Bradley Brickhouse
July 1, 2011
Tyler and his wife Lauren are the sole caregivers of Meredith, a child from Tyler’s previous marriage. (Tyler’s first wife and the mother of Meredith died ten years ago.) Meredith is a child with disabilities, and she is 6 months away from her 18th birthday. She attends public school, and she is currently enrolled in the school system’s Individualized Education Program for children with special needs. Tyler and Lauren have consulted physicians, and they are aware that while Meredith is benefitting from the special education program, she will never function above the level of a 10 year old. Tyler and Lauren are concerned about their ability to make decisions for Meredith after she turns 18 years of age and is considered an adult.
Tyler and Lauren should contact an elder law attorney who works routinely with guardianships and conservatorships in the locality in which Meredith resides. Because Tyler is Meredith’s father, Virginia Code § 37.2-1001 allows him to file a petition with the appropriate circuit court requesting the appointment of a guardian, no earlier than 6 months prior to Meredith’s 18th birthday. In this case, Meredith will have no income other than Supplemental Security Income, so the appointment of a conservator is not necessary. Tyler can also petition the court to appoint a standby guardian, for example, Lauren, who can serve if the primary guardian can no longer serve. After Tyler’s attorney files the petition, the circuit court will appoint a guardian ad litem to serve as the eyes and ears of the court. The guardian ad litem will visit with Meredith, Tyler, and Lauren, contact Meredith’s other close family members, and file a report with the court. Tyler’s attorney will ask Meredith’s physician or psychologist to prepare an evaluation report to present to the circuit court. Because the guardianship process may take away many of Meredith’s legal rights, Meredith is entitled to due process, such as notice of the date and time of the hearing, and a jury trial (upon her request), and she may compel witnesses, present evidence, and cross examine witnesses. If, after considering the evidence presented at the hearing, the judge or jury determines on the basis of clear and convincing evidence that Meredith is incapacitated and in need of a guardian, then the circuit court will appoint a suitable person to serve as Meredith’s guardian. In this case, Tyler is the most likely candidate to serve as Meredith’s guardian, and in his petition he requested that he be appointed. After Tyler is appointed by the circuit court, he must qualify before the clerk of court. The qualification process includes: (1) signing an oath promising to faithfully perform his duties, (2) posting bond, and (3) acceptance of educational materials.
After his appointment, Tyler will have control over Meredith’s personal affairs, unless limited by the circuit court in the guardianship order. This includes deciding where Meredith will live, and making her medical, educational, and employment decisions. Tyler will be required to file periodic reports with the local Department of Social Services.
Tyler and Lauren should consult with an elder law attorney to review and, if necessary, modify their own estate plans. Parents who have a child with disabilities should consider establishing a special needs trust for the assets that they intend to leave for the benefit of their child with special needs. The parents also need to ensure that they have their own advance medical directives in place, as well as general durable powers of attorney.
The attorneys at Oast & Hook can assist clients with their estate, financial, insurance, long-term care, veterans’ benefits, and special needs planning issues.
Bradley Brickhouse is an elder law attorney with Oast & Hook, and he practices in the areas of estate planning, guardianships, and conservatorships, financial abuse, will contests, estate and trust disputes, and litigation in support of these areas.
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