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In the last article, you learned that your goal is to obtain sufficient decision-making authority to legally advocate for your child while imposing the least restrictions on your child’s legal autonomy. You must become what the law calls your child’s substitute decision-maker. A substitute decision-maker is just what it sounds like – a person permitted under the law to make decisions for someone else. This article will look at substitute decision-making from a 30,000-foot view.
The Two Most Common Types of Substitute Decision-Making
Once a child with a disability becomes a legal adult, the two most common types of substitute decision-making utilized by parents are the following:
Guardianship: You file a petition in court to become a guardian of your child; or
Powers of attorney: Your child signs powers of attorney naming you as their agent so you can legally represent your child. Your child commonly signs at least two powers of attorney: a power of attorney for property and healthcare. Your child may also sign a power of attorney for education, or this authority to speak to your child’s teachers and see your child’s educational records can also be put in a power of attorney for property. If your child has mental health issues, particularly if your child takes psychotropic medications, your child may also sign a mental health directive.
Note: Many other forms of substitute decision-making exist, such as being a Representative Payee to manage your child’s government benefit payments or a custodian of a saving account for a minor.
Guardianship
When your child becomes a legal adult, the law presumes your child can make their own decisions. You can challenge this presumption of mental competence by filing a petition in court for guardianship. Guardianship is necessary to protect the person with a disability from neglect, exploitation, or abuse and to encourage the person’s maximum self-reliance and independence.
The court may appoint a guardian only if you demonstrate by clear and convincing evidence that your child, because of their mental, physical, or developmental disability, cannot make and communicate responsible decisions regarding their personal care or finances. In uncontested guardianship cases, evidence typically consists of a Physician’s Report (discussed in a later chapter about the guardianship process ).
Guardianship is a court-approved legal relationship between you (as the guardian) and your child (as the ward). As you will learn in a later chapter, there are many different types of guardians, such as the guardian of the person, guardian of the estate, limited guardian, plenary (full) guardian, temporary guardian, standby guardian, and short-term guardian.
Suppose you become the plenary (full) guardian of the person for your child. In that case, the court is ruling that your child lacks total capacity to make their own decisions and that limited guardianship will not provide sufficient protection. With plenary guardianship, the court order effectively means “from now on, your adult child shall be considered a minor child” by law, and you, as guardian, will make decisions on their behalf. With plenary guardianship, your child with an alleged disability at the time of the petition is adjudicated disabled. With limited guardianship, the adult child lacks some, but not all capacity, and retains some legal authority to make their own decisions.
Thus, plenary (full) guardianship of the person is the most restrictive substitute for decision-making because your child will lose fundamental civil rights. Depending on your state’s laws, your child may lose the right to vote, marry, drive, sign a valid contract, and all the other rights of legal autonomy. Of course, as a guardian, even though you have decision-making authority, you must always consider your child’s preferences.
Although, in general, as a plenary guardian of the person or estate (or both), you can make all the decisions for your child, your authority is not unlimited. Your state’s guardianship statute defines the boundaries of your guardianship authority. For example, some states require court approval to consent to psychotropic medications, approve birth control procedures, or move the ward (the adjudicated disabled person) to a new residence. Guardianship also requires ongoing court supervision. The court takes its role of protecting a ward seriously.
In general, plenary (full) guardianship of the person is appropriate if the person with a disability lacks total capacity to engage in the decision-making process. One needs to understand the various options and consider potential consequences to engage in the decision-making process. However, the legal test is not whether a person with a disability may make a bad decision. Courts will not strip someone’s legal autonomy solely because they make poor decisions. We all make poor decisions on occasion.
Before appointing a guardian, many state laws consider the person’s capacity
Limited guardianship is less restrictive than plenary guardianship but more restrictive than powers of attorney. The concept of limited guardianship recognizes that mental competence is not a zero-sum game: Either the individual has the mental capacity to make their own decisions — or not. The individual may have a partial capacity to make decisions.
Limited guardianship limits the guardian's powers. Your child has partial decision-making capacity. You are petitioning the court for permission as limited guardian to make decisions for your child in specific limited areas regarding your child’s personal care or finances. In all other areas, your child has legal autonomy to make decisions.
Limited guardianship is very appealing from a civil rights perspective. The person with a disability is not adjudicated incompetent and reserves all their civil rights and decision-making authority not given to the limited guardian. Limited guardianship is finely tuned to the person with a disability's strengths and weaknesses.
Who may act as guardians? You, the parent, will typically petition for guardianship. In your will, you may also designate other people or entities you want as guardians after your death. Your state’s guardianship statute will define who can be appointed as a guardian. Typical requirements are the individual.
The guardian can also be other public agencies, not-for-profit organizations, and corporations qualified to accept and execute trusts, such as a bank.
The court may appoint co-guardians.
Powers of Attorney
Powers of attorney are part of the law of agency. As the principal, your child appoints you as their agent. If your child understands the nature and purpose of a power of attorney, then your child can sign various powers of attorney.
In contrast to plenary (full) guardianship, with powers of attorney, your child keeps their full legal autonomy. Unlike plenary guardianship, there is no court adjudication of disability. To have a valid power of attorney, your child must have the requisite legal mental capacity to understand the implications of the underlying document.
With powers of attorney, since you are not petitioning a court to override the legal presumption of mental competence, there is no need to get involved with a court. Your child simply signs the various powers of attorney.
With powers of attorney, your child is “bringing you onto their legal team” so you can legally represent your child. A power of attorney for healthcare lets you represent your child regarding healthcare matters under certain circumstances. A power of attorney for property lets you represent your child for matters other than healthcare, such as banking, setting up an ABLE account, talking to your child’s employer, signing a lease, etc. A power of attorney for education lets you see academic reports and speak to your child’s teachers about your child’s educational performance. The mental health directive lets you represent your child under certain circumstances regarding mental health issues, such as committing your child to inpatient treatment or consenting to psychotropic medications.
With a power of attorney, your child, as the principal, could fire you by revoking the power of attorney. With guardianship, your child would need court approval to terminate or modify the guardianship.
Fork in the Road
In most cases, when your child becomes a legal adult, you will be at a fork in the road: Most commonly, you will decide between plenary guardianship or powers of attorney. Either your child lacks total capacity to make their own decisions, so you petition the court to become a plenary (full) guardian of the person, estate, or both. Or, if your child has the requisite legal mental capacity, your child signs powers of attorney naming you as their agent.
If your goal is to obtain legal authority to help your child make decisions in the least restrictive way, that means powers of attorney are the preferable type of substitute decision-making if — and it is an important if — your child has the requisite “mental capacity” to sign powers of attorney. If your child does not have the requisite mental capacity, you will more than likely petition for plenary (full) guardianship.
Choosing the least-restrictive form of substitute decision-making sounds straightforward in theory. However, in reality, it is murkier. After all, we’re talking about human beings. Your child has unique strengths and weaknesses. Your child also has a unique blend of professionals, friends, and family support.
A significant exception exists to the above “fork in the road” decision. You could petition for a limited guardian for your adult child. In that case, it’s possible, for example, you could be a limited guardian over various financial matters, and your child also has a power of attorney for healthcare.
We’ll discuss limited guardianship in more detail in the chapter about the various types of guardianship. It’s a wonderful concept, but for various practical reasons, it’s used, from my experience, much less often by parents than plenary guardianship or powers of attorney.
To reiterate, you want to pursue the least restrictive form of substitute decision-making that works. Plenary guardianship is the most restrictive form of substitute decision-making. Unlike plenary guardianship, with limited guardianship, your adult child is not adjudicated incompetent. Instead, with limited guardianship, your child keeps all their inherent legal autonomy to make their own decisions except in limited areas – usually specific healthcare or financial areas. Finally, powers of attorney do not restrict your child’s legal autonomy. Your child keeps their complete legal independence.
For example, if your child is “high functioning” on the autism spectrum, then generally, you would not pursue plenary guardianship because you wouldn’t want your child to lose fundamental rights such as the right to vote, marry, drive, and all the other privileges of legal autonomy. You would more likely have your child sign powers of attorney. Or conversely, if your child has a very low IQ, is non-verbal and incapable of self-care, and totally lacks the ability to make decisions, then your child does not have the requisite legal mental capacity to sign powers of attorney. You will likely petition for plenary (full) guardianship.
Whether you pursue guardianship or have your child sign powers of attorney, one of the fundamental factors to consider is your child’s “mental capacity.” The next chapter will discuss this fuzzy concept of requisite legal “mental capacity.” For now, though, assume if your child has the requisite mental capacity to sign powers of attorney, they will likely do so, and if they do not, you will likely petition for some type of guardianship.
In the last article, you learned that your goal is to obtain sufficient decision-making authority to legally advocate for your child while imposing the least restrictions on your child’s legal autonomy. You must become what the law calls your child’s substitute decision-maker. A substitute decision-maker is just what it sounds like – a person permitted under the law to make decisions for someone else. This article will look at substitute decision-making from a 30,000-foot view.
The Two Most Common Types of Substitute Decision-Making
Once a child with a disability becomes a legal adult, the two most common types of substitute decision-making utilized by parents are the following:
Guardianship: You file a petition in court to become a guardian of your child; or
Powers of attorney: Your child signs powers of attorney naming you as their agent so you can legally represent your child. Your child commonly signs at least two powers of attorney: a power of attorney for property and healthcare. Your child may also sign a power of attorney for education, or this authority to speak to your child’s teachers and see your child’s educational records can also be put in a power of attorney for property. If your child has mental health issues, particularly if your child takes psychotropic medications, your child may also sign a mental health directive.
Note: Many other forms of substitute decision-making exist, such as being a Representative Payee to manage your child’s government benefit payments or a custodian of a saving account for a minor.
Guardianship
When your child becomes a legal adult, the law presumes your child can make their own decisions. You can challenge this presumption of mental competence by filing a petition in court for guardianship. Guardianship is necessary to protect the person with a disability from neglect, exploitation, or abuse and to encourage the person’s maximum self-reliance and independence.
The court may appoint a guardian only if you demonstrate by clear and convincing evidence that your child, because of their mental, physical, or developmental disability, cannot make and communicate responsible decisions regarding their personal care or finances. In uncontested guardianship cases, evidence typically consists of a Physician’s Report (discussed in a later chapter about the guardianship process ).
Guardianship is a court-approved legal relationship between you (as the guardian) and your child (as the ward). As you will learn in a later chapter, there are many different types of guardians, such as the guardian of the person, guardian of the estate, limited guardian, plenary (full) guardian, temporary guardian, standby guardian, and short-term guardian.
Suppose you become the plenary (full) guardian of the person for your child. In that case, the court is ruling that your child lacks total capacity to make their own decisions and that limited guardianship will not provide sufficient protection. With plenary guardianship, the court order effectively means “from now on, your adult child shall be considered a minor child” by law, and you, as guardian, will make decisions on their behalf. With plenary guardianship, your child with an alleged disability at the time of the petition is adjudicated disabled. With limited guardianship, the adult child lacks some, but not all capacity, and retains some legal authority to make their own decisions.
Thus, plenary (full) guardianship of the person is the most restrictive substitute for decision-making because your child will lose fundamental civil rights. Depending on your state’s laws, your child may lose the right to vote, marry, drive, sign a valid contract, and all the other rights of legal autonomy. Of course, as a guardian, even though you have decision-making authority, you must always consider your child’s preferences.
Although, in general, as a plenary guardian of the person or estate (or both), you can make all the decisions for your child, your authority is not unlimited. Your state’s guardianship statute defines the boundaries of your guardianship authority. For example, some states require court approval to consent to psychotropic medications, approve birth control procedures, or move the ward (the adjudicated disabled person) to a new residence. Guardianship also requires ongoing court supervision. The court takes its role of protecting a ward seriously.
In general, plenary (full) guardianship of the person is appropriate if the person with a disability lacks total capacity to engage in the decision-making process. One needs to understand the various options and consider potential consequences to engage in the decision-making process. However, the legal test is not whether a person with a disability may make a bad decision. Courts will not strip someone’s legal autonomy solely because they make poor decisions. We all make poor decisions on occasion.
Before appointing a guardian, many state laws consider the person’s capacity
- for receptive and expressive language;
- to understand the nature and implications of decisions;
- to communicate decisions;
- to dress, eat, bathe, and control bladder and bowel;
- to be mobile;
- for independent living;
- to maintain a safe environment;
- to manage medications;
- to pay bills.
Limited guardianship is less restrictive than plenary guardianship but more restrictive than powers of attorney. The concept of limited guardianship recognizes that mental competence is not a zero-sum game: Either the individual has the mental capacity to make their own decisions — or not. The individual may have a partial capacity to make decisions.
Limited guardianship limits the guardian's powers. Your child has partial decision-making capacity. You are petitioning the court for permission as limited guardian to make decisions for your child in specific limited areas regarding your child’s personal care or finances. In all other areas, your child has legal autonomy to make decisions.
Limited guardianship is very appealing from a civil rights perspective. The person with a disability is not adjudicated incompetent and reserves all their civil rights and decision-making authority not given to the limited guardian. Limited guardianship is finely tuned to the person with a disability's strengths and weaknesses.
Who may act as guardians? You, the parent, will typically petition for guardianship. In your will, you may also designate other people or entities you want as guardians after your death. Your state’s guardianship statute will define who can be appointed as a guardian. Typical requirements are the individual.
- has attained the age of legal adulthood (18 in most states);
- is a US resident;
- has not been adjudicated disabled and has not committed a felony unless the court finds the appointment of the person convicted of a felony to be in the best interests of the person with a disability.
The guardian can also be other public agencies, not-for-profit organizations, and corporations qualified to accept and execute trusts, such as a bank.
The court may appoint co-guardians.
Powers of Attorney
Powers of attorney are part of the law of agency. As the principal, your child appoints you as their agent. If your child understands the nature and purpose of a power of attorney, then your child can sign various powers of attorney.
In contrast to plenary (full) guardianship, with powers of attorney, your child keeps their full legal autonomy. Unlike plenary guardianship, there is no court adjudication of disability. To have a valid power of attorney, your child must have the requisite legal mental capacity to understand the implications of the underlying document.
With powers of attorney, since you are not petitioning a court to override the legal presumption of mental competence, there is no need to get involved with a court. Your child simply signs the various powers of attorney.
With powers of attorney, your child is “bringing you onto their legal team” so you can legally represent your child. A power of attorney for healthcare lets you represent your child regarding healthcare matters under certain circumstances. A power of attorney for property lets you represent your child for matters other than healthcare, such as banking, setting up an ABLE account, talking to your child’s employer, signing a lease, etc. A power of attorney for education lets you see academic reports and speak to your child’s teachers about your child’s educational performance. The mental health directive lets you represent your child under certain circumstances regarding mental health issues, such as committing your child to inpatient treatment or consenting to psychotropic medications.
With a power of attorney, your child, as the principal, could fire you by revoking the power of attorney. With guardianship, your child would need court approval to terminate or modify the guardianship.
Fork in the Road
In most cases, when your child becomes a legal adult, you will be at a fork in the road: Most commonly, you will decide between plenary guardianship or powers of attorney. Either your child lacks total capacity to make their own decisions, so you petition the court to become a plenary (full) guardian of the person, estate, or both. Or, if your child has the requisite legal mental capacity, your child signs powers of attorney naming you as their agent.
If your goal is to obtain legal authority to help your child make decisions in the least restrictive way, that means powers of attorney are the preferable type of substitute decision-making if — and it is an important if — your child has the requisite “mental capacity” to sign powers of attorney. If your child does not have the requisite mental capacity, you will more than likely petition for plenary (full) guardianship.
Choosing the least-restrictive form of substitute decision-making sounds straightforward in theory. However, in reality, it is murkier. After all, we’re talking about human beings. Your child has unique strengths and weaknesses. Your child also has a unique blend of professionals, friends, and family support.
A significant exception exists to the above “fork in the road” decision. You could petition for a limited guardian for your adult child. In that case, it’s possible, for example, you could be a limited guardian over various financial matters, and your child also has a power of attorney for healthcare.
We’ll discuss limited guardianship in more detail in the chapter about the various types of guardianship. It’s a wonderful concept, but for various practical reasons, it’s used, from my experience, much less often by parents than plenary guardianship or powers of attorney.
To reiterate, you want to pursue the least restrictive form of substitute decision-making that works. Plenary guardianship is the most restrictive form of substitute decision-making. Unlike plenary guardianship, with limited guardianship, your adult child is not adjudicated incompetent. Instead, with limited guardianship, your child keeps all their inherent legal autonomy to make their own decisions except in limited areas – usually specific healthcare or financial areas. Finally, powers of attorney do not restrict your child’s legal autonomy. Your child keeps their complete legal independence.
For example, if your child is “high functioning” on the autism spectrum, then generally, you would not pursue plenary guardianship because you wouldn’t want your child to lose fundamental rights such as the right to vote, marry, drive, and all the other privileges of legal autonomy. You would more likely have your child sign powers of attorney. Or conversely, if your child has a very low IQ, is non-verbal and incapable of self-care, and totally lacks the ability to make decisions, then your child does not have the requisite legal mental capacity to sign powers of attorney. You will likely petition for plenary (full) guardianship.
Whether you pursue guardianship or have your child sign powers of attorney, one of the fundamental factors to consider is your child’s “mental capacity.” The next chapter will discuss this fuzzy concept of requisite legal “mental capacity.” For now, though, assume if your child has the requisite mental capacity to sign powers of attorney, they will likely do so, and if they do not, you will likely petition for some type of guardianship.