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When your child becomes a legal adult, your child is presumed by law to be able to make their own decisions. At that moment, you lose the legal authority to make decisions for your child. To regain some level of decision-making authority, you must become what the law calls a substitute decision-maker.
You will have to make a decision. You must decide what type of substitute decision-making is most appropriate for your child. This article will explain a three-step decision-making process to help you decide what to do.
Usually, you will decide between two types of substitute decision-making:
I recommend you use a three-step decision-making process to figure out what to do.
Why?
You need a process so you can thoroughly think through your decision. Without a good process, you will likely be a pinball bouncing back and forth between people’s opinions. People have strong views about guardianship because two forces sometimes clash: The emotional desire to protect one’s child and the importance of honoring the adult child's civil right of legal autonomy. The three-step decision-making process will help you calmly consider these sometimes vexing issues.
The three-step decision-making process is straightforward:
Step 1: Define your goal;
Step 2: Weigh all the factors that will influence whether you will achieve your goal;
Step 3: Act accordingly.
I first encountered this three-step decision-making process in the book Alpha Brain: How a Group of Iconoclasts Are Using Cognitive Science to Advance the Business of Alpha Generation by Stephen Duneier. Duneier uses the word “states” instead of factors.
This three-step decision-making process may feel unnatural because we prefer to conserve our mental energy. For cognitive ease, we make most of our decisions quickly. For example, we don’t burden our minds by going through a lengthy decision-making process for most of our daily choices, such as deciding when to cross the street or how to drive to our child’s school. Our brains operate seemingly on autopilot.
However, quick cognitive-easy decisions may not result in the best decision, especially when facing a multi-faceted decision like how best to advocate for your child legally. Your decision about what to do becomes especially vexing if your child with a disability is in the middle range of capability among their peers. Thus, you should slow down and let the three-step decision process guide you toward a thoughtful decision.
The order of the decision-making process is crucial. If you properly define your goal and weigh all the relevant factors that will influence whether you will successfully achieve your goal, the act you will need to do to achieve your goal becomes self-apparent.
Here are the three most common decision-making mistakes:
For example, I often receive phone calls from parents who say, “Mark, my child will be turning 18 in a few weeks. I need to get guardianship.” By stating, “I need to get guardianship,” the parent has started their decision-making process with a conclusion: I need to get guardianship. In other words, the parent has already decided on the act of getting guardianship before fully understanding their goal and weighing all the relevant factors.
The parent’s conclusion – get guardianship – may be the most appropriate action. However, the only way for the parent to know (with any certainty) is to rely on a more systematic decision-making process. Granted, if your child has a profound intellectual disability and cannot feed themselves, bathe, toilet, and perform other activities of daily living, then you will not need to go through a rigorous decision-making process. Your only option will likely be plenary (full) guardianship. However, if you are uncertain about your best course of action, the three-step decision process can help guide you.
Let’s flush out this three-step process in more detail:
Step 1: Define Your Goal
This first step defines the problem you are trying to solve. You must determine the most appropriate way to legally advocate for your adult child. Although defining your goal appears simple, the rest of your decision-making will veer off course if you do not accurately define your goal. In Stephen Dunieier’s book Alpha Brain he says not properly defining your goal is one of the most common causes of a poor decision.
I recommend you have this goal: You want to obtain sufficient decision-making authority to legally advocate for your child while imposing the least restrictions on your child’s legal autonomy.
That goal will force you to consider different types of guardianship (called conservatorship in some states) and alternatives to guardianship, such as powers of attorney for healthcare, property, education, or a mental health directive.
Step 2: Consider All the Relevant Factors
At this step, you consider all the relevant factors influencing whether your actions will achieve your desired goal. For example, if your goal is to invest in the stock and bond markets, you better understand how the factor of the Federal Reserve’s monetary policy moves markets.
In the same way, when deciding between petitioning for some form of guardianship or having your child sign powers of attorney, you should consider many factors – especially if your child with a disability is in that middle area of functioning where it’s unclear what to do.
In later chapters, we will consider several factors, such as the following:
Step 3: Act(s)
Acts are what you do to achieve your goal. If in Step 1 you properly define your goal, and in Step 2 you consider all the factors that will influence whether you will achieve your goal, the act(s) in Step 3 to achieve your goal usually becomes self-evident.
For example, after you work through Steps 1 and 2, you will likely know which of the following acts you'll need to do:
When your child becomes a legal adult, your child is presumed by law to be able to make their own decisions. At that moment, you lose the legal authority to make decisions for your child. To regain some level of decision-making authority, you must become what the law calls a substitute decision-maker.
You will have to make a decision. You must decide what type of substitute decision-making is most appropriate for your child. This article will explain a three-step decision-making process to help you decide what to do.
Usually, you will decide between two types of substitute decision-making:
- You will petition the court to become a guardian for your adult child. (In a later chapter, we will discuss the types of guardianship); or
- Your child will sign powers of attorney such as a power of attorney for healthcare, property, education, and maybe a mental health directive.
I recommend you use a three-step decision-making process to figure out what to do.
Why?
You need a process so you can thoroughly think through your decision. Without a good process, you will likely be a pinball bouncing back and forth between people’s opinions. People have strong views about guardianship because two forces sometimes clash: The emotional desire to protect one’s child and the importance of honoring the adult child's civil right of legal autonomy. The three-step decision-making process will help you calmly consider these sometimes vexing issues.
The three-step decision-making process is straightforward:
Step 1: Define your goal;
Step 2: Weigh all the factors that will influence whether you will achieve your goal;
Step 3: Act accordingly.
I first encountered this three-step decision-making process in the book Alpha Brain: How a Group of Iconoclasts Are Using Cognitive Science to Advance the Business of Alpha Generation by Stephen Duneier. Duneier uses the word “states” instead of factors.
This three-step decision-making process may feel unnatural because we prefer to conserve our mental energy. For cognitive ease, we make most of our decisions quickly. For example, we don’t burden our minds by going through a lengthy decision-making process for most of our daily choices, such as deciding when to cross the street or how to drive to our child’s school. Our brains operate seemingly on autopilot.
However, quick cognitive-easy decisions may not result in the best decision, especially when facing a multi-faceted decision like how best to advocate for your child legally. Your decision about what to do becomes especially vexing if your child with a disability is in the middle range of capability among their peers. Thus, you should slow down and let the three-step decision process guide you toward a thoughtful decision.
The order of the decision-making process is crucial. If you properly define your goal and weigh all the relevant factors that will influence whether you will successfully achieve your goal, the act you will need to do to achieve your goal becomes self-apparent.
Here are the three most common decision-making mistakes:
- You do not fully understand your goal;
- You do not understand which factors to consider before deciding; and
- You start thinking with the act in mind before properly defining your goal and considering all the relevant factors.
For example, I often receive phone calls from parents who say, “Mark, my child will be turning 18 in a few weeks. I need to get guardianship.” By stating, “I need to get guardianship,” the parent has started their decision-making process with a conclusion: I need to get guardianship. In other words, the parent has already decided on the act of getting guardianship before fully understanding their goal and weighing all the relevant factors.
The parent’s conclusion – get guardianship – may be the most appropriate action. However, the only way for the parent to know (with any certainty) is to rely on a more systematic decision-making process. Granted, if your child has a profound intellectual disability and cannot feed themselves, bathe, toilet, and perform other activities of daily living, then you will not need to go through a rigorous decision-making process. Your only option will likely be plenary (full) guardianship. However, if you are uncertain about your best course of action, the three-step decision process can help guide you.
Let’s flush out this three-step process in more detail:
Step 1: Define Your Goal
This first step defines the problem you are trying to solve. You must determine the most appropriate way to legally advocate for your adult child. Although defining your goal appears simple, the rest of your decision-making will veer off course if you do not accurately define your goal. In Stephen Dunieier’s book Alpha Brain he says not properly defining your goal is one of the most common causes of a poor decision.
I recommend you have this goal: You want to obtain sufficient decision-making authority to legally advocate for your child while imposing the least restrictions on your child’s legal autonomy.
That goal will force you to consider different types of guardianship (called conservatorship in some states) and alternatives to guardianship, such as powers of attorney for healthcare, property, education, or a mental health directive.
Step 2: Consider All the Relevant Factors
At this step, you consider all the relevant factors influencing whether your actions will achieve your desired goal. For example, if your goal is to invest in the stock and bond markets, you better understand how the factor of the Federal Reserve’s monetary policy moves markets.
In the same way, when deciding between petitioning for some form of guardianship or having your child sign powers of attorney, you should consider many factors – especially if your child with a disability is in that middle area of functioning where it’s unclear what to do.
In later chapters, we will consider several factors, such as the following:
- Doctor’s or neuropsychologist’s evaluations of your child regarding the appropriateness of guardianship;
- Your child's "mental capacity;”
- Your child's medical history;
- Whether you expect your child to drive someday;
- Financial issues;
- Mental health issues;
- Liability issues;
- Whether your child has a history of violence;
- A concept I call "strategic patience;"
- Whether your child owns assets that are convertible to cash;
- Divorce.
Step 3: Act(s)
Acts are what you do to achieve your goal. If in Step 1 you properly define your goal, and in Step 2 you consider all the factors that will influence whether you will achieve your goal, the act(s) in Step 3 to achieve your goal usually becomes self-evident.
For example, after you work through Steps 1 and 2, you will likely know which of the following acts you'll need to do:
- Petition the court for plenary guardianship;
- Petition the court for limited guardianship;
- Petition the court for guardianship of the person, estate, or both;
- Have your child sign powers of attorney for education, property, and healthcare;
- Have your child with mental health issues sign a mental health directive;
- Have your child sign a Supported Decision-Making Agreement.