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  • Posted June 17, 2019

Do I Have to be Guardian?

This was a question I asked myself for years – my wife and I strongly disagreed (I was against). I ended up filing for, and receiving, Guardianship of my son and as of the time of this writing I believe it was the best choice; but it was a difficult one.

I want my son to be independent, I want him to be able to make his own decisions – but I’m painfully aware of how little he understands when the decisions to make are complicated, especially medical and/or financial. Add to this he’s very compliant, if someone asks/tells him to “sign here” he doesn’t think twice. A definition I’ve found helpful, from the Primary Care Companion of the Journal of Clinical Psychiatry (link to full article included) is the “the mental ability and cognitive capabilities required to execute a legally recognized act rationally”(Leo, 1999).

This says nothing about being nonverbal or unable/unwilling to communicate; it’s focus is completely on the person’s intellectual capacity/capability – which is not correlated to their ability to communicate (although it may also be present). Rather, the focus is on the individual’s ability to process information and make reasoned decisions (whether family members agree or not, think back to your own late teens early 20’s).

When weighing the decision to become your child’s legal guardian or not care should be given to considering other alternatives – are there more less restrictive, options? Supported Decision Making is becoming more common place, The National Resource for Supported Decision-Making provides an overview of how States across the country are implementing it; and could be a great resource for families exploring their options.

As with anything, I don’t believe there is a single solution – there are pros and cons to everything. Guardianship – what happens if the legal guardian dies before the individual? The individual becomes a “ward of the state”, what does that mean? Talk to an elder law/special needs attorney – this is an area they concentrate in and will be able to give you state-specific answers. Supported Decision Making – how do you find team members you can trust? What happens if they leave or you have a falling out?

I don’t want anyone looking at their situation from a constantly pessimistic lens, but it’s important proper consideration be given to all options. Waiting until the individual turns 18 to have the discussion, or worse, making a snap decision, is the worst thing I think anyone can do. Start talking/communicating with the individual at least when they become teenagers. Technology has enabled communication for many of those who are non-verbal, and it’s constantly evolving – if you haven’t found anything that works (yet), keep looking.

In answer to the question I posed in the title – “it depends”. I don’t believe it should ever be an automatic “yes”; because there are so many other considerations. As I shared, I’m my son’s legal guardian – I do believe there are times it’s appropriate. My concern is I’m not sure schools (or anyone else) are helping parents find resources or understand their options. It’s a serious commitment, it doesn’t just mean you’re their “parent”. Please take the time to learn more and understand what you may be signing up for.