The question of whether or not to obtain guardianship is one that sometimes does not cross the minds of parents who have children with an Autism Spectrum Disorder. An 18th birthday does not change much in your day to day life. Unless you have been given a heads up about the fact that legally your child is now considered an adult no matter their level of functioning, you may not realize that things have in fact changed with the passing of that 18th birthday. Your child now has the right to make decisions that you may not think they are capable of making. They now have confidentiality rights that exclude you from receiving information about their medical records and treatment without their consent. Some of the scariest stories I hear are in reference to this very issue. You may say, “I am his (or her) mother, of course I should be able to decide what medication my child receives or get a call if he is transferred from the emergency room to Sheppard Pratt Health System.” Can you imagine showing up to the emergency room where you believe your child is located after displaying unsafe behaviors at home or school, only to find, they have been transferred to another hospital? I have heard this story too often from frustrated and terrified parents.
I say all of this to say, it’s important to consider whether obtaining guardianship of your adult child with an Autism Spectrum Disorder is the best choice for your family. I’ll walk you through some questions to consider while trying to make this important decision.
What is guardianship?
There are two types of adult guardianship: A guardian of person is authorized by the court to make decisions for a disabled person about their healthcare, shelter, or other daily needs. A guardian of the property is a person appointed by the court to manage the property of a disabled person. If you decided to pursue guardianship, you would need to consider if it is necessary to pursue one or both of these types of guardianship. These positions are appointed by the court. Therefore, the guardian is an agent of the court, but the court is the ultimate guardian.
Does my adult child need a guardian?
A diagnosis of an autism spectrum disorder, mental illness, or intellectual disability does not automatically mean that a person lacks the capacity to make decisions. If it is clear to you that your child is unable to make informed and responsible decisions regarding his or her education, treatment, or general navigation of daily life, you may want to consider pursuing guardianship. One of your first steps should be speaking with your child's primary care physician, psychiatrist, or therapist. You must consider the opinion of healthcare professionals in your child’s life, because they will have to provide documentation stating that your child is in need of a guardian based on their professional opinion. This is a requirement for obtaining legal guardianship.
Am I able to perform the duties of a guardian?
You do not need to be an attorney or have any legal expertise to be a guardian. However, you do need the ability to make decisions in your child's best interest. This includes having the availability to research options to make good decisions and having the ability to act on your child's behalf based on their preferences and resources, even if it may not be what you would choose for yourself.
What is the process for obtaining guardianship?
Becoming a guardian is a legal process. Obtaining guardianship can involve retaining the services of an attorney. Fees vary for this service. However, if your child lives in Maryland, a guardianship petition can be filed without an attorney, at the circuit court of the county where your child lives (the process varies from state to state). This involves doing the leg work of completing the necessary forms and obtaining the needed documentation from healthcare professionals, then filing this paperwork yourself. Filing without an attorney can be a challenge but may be worth it to save on the fees. Detailed steps and forms pertaining to guardianship in the state of Maryland can be found in the guardianship section of the Maryland Courts website, https://courts.state.md.us/.
I hope this exercise provided you with the opportunity to seriously consider whether or not obtaining guardianship is the right thing to do for your child. There is no right or wrong answer. If you are still unsure of the best decision to make, take that first step and talk it over with a trusted healthcare professional.
Manda Lollar, LCSW-C, is a social worker at Sheppard Pratt Health System on the Intellectual Disabilities and Autism Unit in Towson. Manda completed a dual degree undergraduate program, earning a Bachelor of Social Work Degree from Salisbury University and a Bachelor of Sociology Degree from the University of Maryland Eastern Shore. She earned a Master of Social Work Degree from the University of Maryland, Baltimore. Manda has 15 years of practice experience providing case management, individual therapy, group therapy and program leadership for various agencies. She views her role as a social worker on an inpatient psychiatric unit as a great honor in that she has the unique opportunity to support individuals and families through some of most difficult times of their lives.