Obtaining Guardianship for My Autistic Son

Now that my son Kyle is sixteen, his IEP meetings are rather routine. While I talk with his teacher and therapists, Kyle roves about the room, smiling, and making occasional comments. At his most recent meeting we discussed his progress—how he’s been improving his eye contact and social behaviors, how he loves to cook, and how he can balance a simple checkbook.

We excitedly congratulated him on his first public speech—which he gave in his communications class in front of typical students. Before his speech day, we had written the text of the speech together, and he was able to read it at the podium, and even showed the audience his “Eagles” music book—his prized possession. It was a tremendous accomplishment, and everyone gave him high-fives. We talked about his academic strengths and weaknesses.

Then, the awful question came from Kyle’s main teacher.

“Have you thought much more about what Kyle will do after he turns eighteen?”

I shrank a bit in my chair. “I have to admit, I’ve been subconsciously pushing those thoughts aside. They’re a little scary for me, I guess. I suppose it’s time to start thinking about it.”

“Yes,” she said. “What do you envision when you imagine Kyle as an adult?”

I paused. “I see him working in a job he likes, having his routine, and…well…I guess I see him living at home.”

“Is that what Kyle wants?”

“To be honest, I’m not sure. I know he’s very content at home. I wouldn’t mind the idea of him living on his own, but I’d want him relatively close so I could check on him and make sure he’s doing well. He’d probably need a roommate or a group living situation. My biggest fear is that someone will take advantage of him—steal from him or harm him in some way. He’s so pleasant that I wouldn’t mind him staying at home.”

The teacher turned to Kyle. “Kyle, would you like to live at home when you’re finished with high school?”

Kyle smiled. “Sure,” he said.

She continued, “Or would you like to live in your own apartment, maybe with a friend or roommate?”

“Sure,” said Kyle, in his usual agreeable manner. I don’t think it really mattered to him, as long as he had access to the things and people he liked.

“Either way,” the teacher said to me, “you’ll need to apply for guardianship, probably before he turns eighteen.”

I’ve always thought of Kyle as youthful, and the idea of him becoming an adult is daunting. I remembered Kyle as a four year old, climbing timidly aboard the school bus into a crowd of rowdy older children. I could recall standing back and watching the shadow of his head bob across the windows and get swallowed up by the other shadows. Kyle seemed so totally vulnerable—and it was painful for me to watch the bus rev up and head down the road. I hated letting him go out into the world on his own. Coming to terms with Kyle’s approaching adulthood and my need to apply for guardianship doesn’t feel that much different today.

What is guardianship?

When your special needs child turns eighteen, in most states he is legally an adult–free to act of his or her own accord. It does not matter how severe your child’s disability may be, in most states you must apply for guardianship when he or she becomes an adult in order to legally make medical and financial decisions for him or her. Guardianship is an arrangement through which a person (the guardian) is legally authorized to make decisions for another person (the ward). For young adults with severe developmental disabilities, the need to seek guardianship is obvious. However, a young adult with mild delays might only need limited guardianship or conservatorship.

What decisions can a guardian make for a ward?

If you have limited guardianship for your child, the court will decide which decisions you will be authorized to make for your son or daughter. But in a full guardianship scenario, you will probably be responsible for things like:

  • Making sure the wards basic needs are met
  • Keeping track of and caring for the ward’s personal property
  • Making some financial decisions for the ward, if he or she does not have a conservator
  • Making decisions about the ward’s health care
  • Determining where the ward will live

As a guardian, you should always carefully consider your son or daughter’s happiness, wishes, values, beliefs, and personal history. If necessary, consult with other family members or health professionals who know his or her needs.

What is conservator, and does my son or daughter need one?

A conservator is appointed by a judge if he/she determines the individual in question is incapable of making important financial decisions. This is especially important if the individual has an inheritance or savings which could be misused or taken advantage of by others.

If I’m a guardian for my child and he/she commits a crime, am I going to be held responsible?

In most cases, no. Guardians do not usually have to use their own funds to protect their wards. And a guardian is not liable for any financial acts of the ward. However, a guardian is expected to only use the ward’s money in his or her best interest. If the guardian has been negligent and this negligence leads to behavior that is destructive or damaging on the part of the ward, the guardian could be held responsible.

How do I apply for guardianship of my child?

Contact the Office of the Public Guardian in your state. Every state differs, and you should just ask them where you need to begin and let them walk you through the process. You will need to fill out an application for guardianship and file a petition for appointment of a guardian with an appropriate state district court. Typically an attorney should represent the Petitioner (you) who is requesting guardianship. You should expect legal fees and costs associated with this, however, in some cases the court can reimburse your legal expenses.

What happens next?

After the court receives your petition, a hearing will be scheduled. Various persons, including the ward (your son or daughter) will need to be notified and to attend the hearing. The court will appoint a lawyer if the ward cannot afford one for him/herself. As petitioner, you will want to bring ample evidence to demonstrate that your child needs a guardian. This evidence might include medical paperwork, statements from doctors, teachers, or therapists, and other important records. If there is disagreement between parties over guardianship or any other complicating factors, the judge may schedule a trial. If a trial is not necessary, the judge may grant the petition at the initial hearing.

Kristyn Crow is the author of this blog. Visit her website by clicking here. Some links on this blog may have been generated by outside sources are not necessarily endorsed by Kristyn Crow.