The What, Why, When, and How of the Guardianship Process for Your Child who Needs a Lifetime of Care.

“What happens if I can’t be here to take care of my child with special needs?”

Regardless of a child’s needs, when a person turns 18, the “world” sees the person as his/her own legal person. That is to say, a person’s medical, financial, and education information and decision-making is protected to that person.

The issue arises if a diagnosed condition limits a person’s legal capacity to manage his/her own affairs. In the olden days, the world didn’t strictly limit access to your child’s protected information. Because of this, a formal procedure to appoint a person’s legal representative wasn’t as necessary.

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Guardianship: What

However, HIPAA, FERPA, and regulations in the financial world changed things. So, the need for this legal appointment happens more often.

Guardianship is a legal appointment of a person over another. The appointed Guardian maintains a proactive, legal responsibility to
– care for,
– protect, and
– provide for the person.

The term Ward references the person under that care.

In Indiana, the Guardian maintains a relationship with the appointing-Court to account for the well-being and financials of the person.

Guardianship: Why

A key phrase drives court decisions regarding children: the best interest of the child.

If a court determines, a person can’t safely and independently care for his/herself, it appoints someone to care for that person.

Legally, a person declared incapacitated faces substantial limitations. A Ward cannot:
– make his/her own medical and financial decisions,
– enter into a contract, and
– apply to receive government support.

The Guardian step into this role to represent the person to the world to make sure s/he received support and oversee the person’s wellness.

Guardianship: When

In recent years, Indiana Courts began to require an evaluation of the person’s condition and situation. That evaluation determines if a full Guardianship over the person is necessary.

Not every situation requires a full Guardianship. For example, it may be possible for your child to execute a Power of Attorney (POA). If it is an option, the POA appoints a person(s) to assist with financial, medical, and education decisions and processes.

To execute a POA, the person’s cognitive level must allow him/her to understand what the document grants and to whom. However, if the level can be reached, the process is much more efficient and cost-effective.

If the level cannot be reached, it is probable Guardianship is necessary to appoint a person to provide care for the person.

As to timing, a parent does not need Guardianship until a child reaches 18. Prior to 18, parental rights allow the care decision-making and access to information. Before the child turns 18, a parent can start the evaluation for Guardianship. Even if possible, a Power of Attorney cannot be signed until the child is 18. Similarly, the parental Guardianship appointment needs the child to be 18.

If a parent is not involved and the child is under 18, there are other considerations with regards to the Guardianship process.

Guardianship: How

As mentioned, if an evaluation determines Guardianship is necessary, the process should start a couple months before the child turns 18. One of the items that helps determine the need is also a key piece of evidence to the court: a Physician Statement. This is a standard form which prompts the child’s physician to address some specific questions about the child’s situation. This includes specific prompts as to the child’s capacity as well as the need for oversight as to financial and health decisions.

Since this might take some time as it may necessitate a visit or two as well as the time for the physician to complete the 3-page form.

There are additional items to gather – consents, information forms, and information to complete court filing documents. The filing goal should target the person’s 18th birthday to allow the best scenario to allow uninterrupted ability to care for your child.

Guardianship: How Much

As to the “How much?” question, like most legal situations, costs will vary by attorney. In addition, some situations may require more court involvement or other things that may increase the cost.

At CCSK Law, we strive to be efficient and as thorough as possible to manage costs. If Guardianship is necessary, an uncontested, limited hearing, special needs child guardianship usually run $1,500, plus necessary filing and notice expenses. Those will be $200-$250. (Current as of April, 2021)

The most common situation which increases costs is the situation with separated/divorced parents. The drawn out exchange results in the appointment of a Guardian Ad Litem and additional hearings. Those actions take time and court involvement – two things that drive up expense and delay the appointment of the guardian to care for the child.

How to get started with a Guardianship for my Special Needs Child?

There are several ways to get started:

Guardianship for Special Needs Child - What Why When How and How Much. Join a free information session for parents in West Lafayette April 26

RG Skadberg
Founder/Attorney, CCSK Law

I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so without breaking the bank.
I love the opportunity to break-through legal jargon to clarify issues
We find success when we work through a person’s situation and put the law to work for them.

About the author

Author profile

Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.

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