Zoom Autism Magazine Issue12 - Page 36

BY Ed Zetlin & Mark Friese ION LENS T A L S I G LE CONNER’S Guardianship P rofessionals often advise parents about the need for Guardianship when their child turns 18. Before the age of 18 par- ents are the “natural” guardians of their chil- dren, but upon reaching 18, children are legally emancipated and now adults. With the advent of HIPAA regulations, doctors, hospitals, health professionals, and government agencies require either consent from the 18-year-old or a guard- ianship order as a prerequisite to providing any information to third parties (the parents) about their disabled son or daughter. But parents and the disabled son or daugh- ter rightly have questions about the need for Guardianship and the process to obtain Guard- ianship. Guardianship is a court determination. The court determines whether 1. the alleged incapacitated person meets the statutory re- quirements for incapacity and 2. whether the proposed Guardian(s) are appropriate and will fulfill the duties of a Guardian. Disability does not equal incapacity. An autistic adult may need assistance in some aspects of their life, but that does not mean a Guardian is required. The advent of “assisted decision mak- ing” is an attempt to find a new approach rather than summarily obtain a Guardian. Assisted de- cision making probably deserves its own article. If you and your spouse were to divorce to- morrow, would you be able to financially care for your autistic child on your own— perhaps for your child’s lifetime? LAW One rule of thumb to think about is to imagine whether a physician would accept “informed consent” from the disabled person if a medi- cal procedure is needed. Can the person un- derstand the risks and benefits of a medical procedure and convey that understanding and approval or disapproval to the proposed proce- dure? All states are different in their Guardianship laws. There are different definitions of “inca- pacity,” different procedural rules and differ- ent rules as to who represents or speaks for the disabled person. We can make some generaliza- tions for all jurisdictions. 4. A hearing is held to appoint the Guardian. Co-guardians are allowed in all jurisdictions. 5. The Guardian has a continuous duty to re- port to the court or some agency as to the welfare and living conditions of the incapaci- tated person. Generally, these are not difficult cases. How- ever, Guardianship should not be taken lightly. Guardianship is a significant loss of rights. It is best viewed as a means for assuring protection and the welfare for the incapacitated person if no other substitute decision-making process is available. 1. Some form of recent medical/psychiatric/ functional evaluation of the person is required. 2. A petition/complaint laying out the need for Guardianship and the proposed Guardian is required. 3. The court always appoints a third person, usually a lawyer, as a court investigator or guardian ad litem to make an independent evaluation of the need for Guardianship and the fitness of the proposed Guardian(s). Edward Zetlin has a solo practice in the areas of elder & disability law, guardianship/conservatorship, public benefits, estate planning and estate administration. He serves on the Northern Virginia Autism Association Board and is an Adjunct Professor of Law at the Washington College of Law of American University. Mark Friese is the founder of Special Needs Financial Advisors, based in Washington, D.C. With over 100 years of combined experience, they help to navigate the many aspects of planning with special needs family members. WE NEED YOUR HELP! SB923 Conner’s Law passed in VA. Join our advocacy movement while we go state by state, changing laws as needed... Because a disability doesn’t stop on a child’s 18th birthday. Conquer for Conner 36 ZOOM Autism through Many Lenses ZOOM Autism through Many Lenses 37