How do I get guardianship for my soon to be 18 yr old son?

Question:My son has autism and is cognitavely disabled. Developmentally he is closer to a five year old than a young adult. I always just assumed that guardianship would be automatic...something I didn't worry about. However, I have recently been told this is not the case and that there is quit a process for me to be his guardian after he turns 18. Can anyone explain this process, or point me to a website that can? What is the first step? Who do I contact? Where do I apply? I live in Massachusetts and my son attends a residential school for severly disabled boys. Thank you.




Answers:
Try this web address:
www.lawlib.state.ma.us

Click on "Law by subject" and then "Guardians and Conservators."

You are correct that, once a person turns 18, the parents no longer have the legal right to make decisions for their adult child. This can lead to some difficult situations - for example, the person may need a medical procedure done, but the doctor knows that this person cannot give legal consent, because they are not capable of understanding all the possible consequences of the procedure. But since he is an adult, the parent no longer has the right to make decisions for him. I am legal conservator for my adult sister, who has Down syndrome. I got a lawyer to file my petition for conservatorship, and then the court investigator had to interview my sister, both to determine whether she actually needed a conservator, and also whether or not she was comfortable with me being her conservator. We had to submit a statement from a doctor stating that my sister did not have the cognitive ability to make decisions regarding health care, finances, etc. They also had to look into my background and references, and the court approved my petition. Every 2 years, they interview us both to make sure that everything is still going well and that I am upholding my responsibilities to her. We live in California, so I am sure some of the details will be different, but the general procedure will be very similar.

I would suggest that you contact your local ARC or Autism Society and ask for a referral to an attorney who is experienced in handling guardianship/ conservatorship cases. Even though I am a special education teacher and know a lot about the local services for people with special needs, I am not a legal expert, so I was appreciative that our local ARC was able to direct me to an experienced attorney.
His school should be able to help you find an attorney/or advocacy agency to help.
I'm not sure if this is along the lines of what you're looking for. If not, perhaps the ppl whose website it is could refer you to a more appropriate place. So, here it is and good luck to you:

To acquire a guardianship from the Court, the ward must be mentally ill, mentally retarded, or disabled; is a minor; or is suffering from severe dementia due to Alzheimer's or a like disease. The ward's judgment must be impaired due to mental or physical infirmity or suffer from very limited intellectual ability due to mental retardation. To protect the ward's personal liberty, no appointment is made by the Court if additional support and training may enable the ward to avoid the need for guardianship.

The standard used by the Court is significant. The presumption is that anyone age 18 or older is competent unless proven incompetent. The Court protects against the deprivation of fundamental liberty, dignity, and respect by consulting the ward as to their feelings and opinions regarding their care. Only when impaired judgment or capacity poses a major threat to the ward's welfare that is more than poor judgment or difficulty in making decisions.

The person appointed guardian is a person with capacity and ability to make decisions in the best interest of the ward. Unless limited by the court, the guardian is responsible for the ward's basic needs (such as food, shelter, clothing and education), medical needs (such as authorizing or withholding consent for medical care), settling the ward's debts and accounts using funds of the ward for their benefit, managing the ward's property and money for their benefit, participating in all decisions (including residency), and standing in the place of the ward in any legal proceeding and handling all matters that might otherwise require the legal standing of the ward (such as signing checks, entering into contracts, using credit cards, holding debt, filing insurance claims and applying fro state and federal benefits).

The guardianship is terminated when the ward dies or the ward's judgment and capacity improves.
You will need an attorney for this procedure. The school he is at should have the names of someone who can help. I would also contact his doctors and/or therapists to give them a heads up since they most certainly will be needed to prepare reports for the courts to determine you son needs a gaurdian appointed.

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