This page contains a Flash digital edition of a book.
by Claudia Inés Pringles, Esq.


Throwing a Life Saver Without Going Overboard:


Considering Alternatives to Guardianship The question I am asked most often by


parents of individuals with special needs is: “What will happen to my child when I can no longer take care of her?” It is a question of uncertain direction and almost certainly followed by a more directed question about the process of petitioning for guardianship. As a parent of a child with significant needs, I understand the fears of other parents and desires of immortality. As an attorney, I understand the temptation to dive directly into addressing my client’s specific question and begin explaining the process of seeking legal guardianship. That is what the client is asking for, right?


The Push for Guardianship


Understandably, parents have a lot of anxiety over the future of their sons and daughters with disabilities. They worry about their child’s vulnerability and what will happen once they as parents are unable to support them. The assumption for many parents and family members of individuals with special needs is that guardianship over their child is a necessity. Unfortunately, serious consideration of whether or not to pursue guardianship often does not arise until a child with a disability is at the door of adulthood. Other parents may feel pressured to seek guardianship. Parents may be given the misinformation that guardianship is necessary for them to continue participation in their child’s special education program and IEP meetings, or even to receive school notices once their son or daughter turns eighteen. In other situations, the parent’s hand may be forced by their child’s desire to finish high school early rather than accessing their right under special education law to continue their education until age twenty-two.1


The desire for a


parent to have their child finish school as well-prepared as possible for adult life may cause parents to pursue guardianship to compel their children with disabilities to continue attending school.


Can I Go on a Date?


In the name of protecting persons with disabilities, guardians may seek and receive the full powers of guardianship, with broad authority over the person


www.vtbar.org


under guardianship. In practice, some guardians may interpret this authority as a blank check to make intrusive decisions over every aspect of the life of the person with a disability. Decisions about issues like dating, where to live, where to go, and what to buy become even more difficult as parents/family members turned legal guardians struggle with their own fears and extend their reach of protection. Guardianship is not intended to be an


exercise of control over an individual whose preferences, choices, and decisions may simply differ from those of the guardian.2 There is no doubt that even parents of typically-developing young adults would like to have more control over their children when they turn eighteen, as the eighteen year-old who is fully prepared for adulthood is rare. Guardianship powers are not the same as parental rights. Yet courts granting guardianship powers are not in a position to monitor the daily actions of guardians, and persons under guardianship may not be able to understand the limits of guardianship powers, and simply accept the overreaching of well-meaning guardians.


Considering Alternatives to Guardianship


Vermont laws favor the least restrictive method of assisting a person in need of support, whether or not the individual with a disability is under guardianship. Even individuals who are under full guardianship are supposed to be encouraged to make their own decisions and have their wishes and values


honored to the possible extent.3 The alternatives to guardianship are less


restrictive methods of providing support to the individual with a disability and must be considered prior to filing for guardianship.4 It is important for parents and other family members to understand that these alternatives can provide safeguards for their sons or daughters with disabilities, safeguards that can provide needed support for individuals with disabilities to make choices and decisions and seek a life that meets their needs. Alternatives to guardianship are certainly not sufficient for all individuals with disabilities, as some will need the additional protection that a limited or full guardianship provides.


THE VERMONT BAR JOURNAL • SPRING 2011 greatest


However, these legal tools must be considered prior to the imposition of a more restrictive guardianship.


Getting Ready for Adulthood


A lifetime of constant care and supervision can make any individual less confident and less effective at making independent decisions.


In this way, well-meaning


parents, caregivers, and school teams can inadvertently make the individual with a disability more, rather than less, vulnerable to the challenges of the outside world. With preparation and planning, individuals with cognitive and mental impairments can learn to become more independent adults, and be given the tools, opportunities, and confidence to make choices and learn from mistakes, especially within the safe environs of home and school. One vital step in this process is the


proper development and implementation of a transition plan within the student’s Individualized Education Program (IEP). All IEPs for students who turn sixteen must include a transition plan,5


and a


properly implemented transition plan can help to increase a person’s ability to function independently after school. With the uncertainty of the non-entitlement world of “adult services,” parents of children and young adults should be strongly encouraged to work with schools to develop IEP and transition plan goals that foster independence. Individuals with disabilities tend to be in highly structured programs with frequent prompting and direction from staff throughout the day. Meaningful goals that will incorporate independent decision-making, personal choice,


and self-advocacy, rather than


constant direction, will better prepare individuals for adulthood, and lessen the need for restrictive guardianships. In developing transition goals, one goal that I recommend to clients with higher functioning children on IEPs is to create a goal around understanding a Power of Attorney and Advance Health Care Directive. Because some individuals with mild cognitive impairments need more processing time, introducing this goal well in advance of turning eighteen could help to ensure the individual has a good understanding of these documents


21


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60