When considering guardianship, students and their families must think about self determination and ways for students to participate in decisions about their own lives. When students are more self-determined, they can speak up for themselves and indicate their preferences and ideas about guardianship, then decide on areas in which they may need more support and guidance from family members.
Conversation preceding transfer of rights
It is important to understand that BEFORE the student turns age 18 (in Massachusetts), parents and children must have a discussion about the transfer of rights when a student reaches the age of majority. These questions should include:
- What types of decisions do you (son/daughter) feel comfortable with?
- What decisions should be shared?
- If the family determines that guardianship is necessary, parents must obtain court-ordered guardianship of a child who has disabilities after the child reaches age 18. Full guardianship authorizes parents to make placement, financial, and medical treatment decisions.
Levels of guardianship
Students and their parents can decide on varying levels of guardianship. They can decide to pursue:
- shared guardianship with the youth with a disability, for which both parent and student would sign all documents and make decisions together
- partial guardianship in agreed upon areas, such as medical decisions - whereby the parent/guardian may have control, versus areas in which individuals are considered competent to make their own decisions
- total guardianship where the parent has been granted full responsibility over decisions for their adult child with a disability
To receive guardianship, a parent must declare before a judge that their adult child is incompetent to make decisions that impact his/her life. For many families, this can be a difficult decision to make and an arduous process to go through.
Guardianship and self-determination
Guardianship and the concept of self determination have an uneasy relationship. Here are some questions to think about:
How can a person be declared legally incompetent, yet still feel empowered to make decisions about his/her life?
Can these situations co-exist?
Key terms related to guardianship
- Guardian—a person, appointed by the court, to manage the affairs of someone who has been deemed unable to make independent decisions
- Conservator—an individual who is named to make financial decisions for an individual who has been determined incapacitated or who is a minor
- Trustee—a person who holds legal title to property in order to administer it for the benefit of an individual
Resources on guardianship
- Massachusetts Law about Guardianship and Conservatorship
- The ARC: Guardianship
- Massachusetts Guardianship Association
- Millar, D. S. (2003). Age of majority, transfer of rights, and guardianship: Considerations for families and educators. Education and Training in Developmental Disabilities, 38, 378–397.
- Payne-Christiansen, E.M. & Sitlington, P. ( 2008). Guardianship: Its role in the transition process for students with developmental disabilities. Education and Training in Developmental Disabilities, 48(1), 3-19