Four Differences Between Guardianship of a Child and a Disabled Adult

 Posted on November 02, 2017 in Guardianship

In broad terms, guardianship can be differentiated by cases involving minors and cases involving disabled adults. Both are similar in that they require a court ruling to determine whether a responsible adult should have decision power over the ward’s:

• Personal care and health; and/or
• Financial estate.

However, guardianship of a disabled adult has many fundamental differences from guardianship of a minor. Obtaining guardianship of a child is already a difficult process because the court must determine what is in the best interest of the child. Obtaining guardianship of a disabled adult can be more complicated because the court must also consider the rights of the adult. Here are four key differences between guardianship of a minor and guardianship of a disabled adult:

1. Assumed Need for Guardian: Children must have an adult who is responsible for their safety and personal decisions. If the parents are incapable of doing that, a guardian will be appointed, whether it is another adult or the state. For disabled adults, courts prefer to give them as much independence as they can handle. The person requesting guardianship must explain why he or she should have power over the adult.
2. Parents As Guardians: Parents do not need to apply for guardianship of minors because they are assumed to be responsible for their own children. When a disabled person becomes a legal adult, the parents will need guardianship if they want to retain the decision-making power they had when the disabled adult was a child. As with anyone else, the parents must prove why they should have guardianship of an adult.
3. Legal Preparations: To prove the need for guardianship, the petitioner must show why the disabled adult is incapable of being responsible for him or herself. A doctor’s evaluation is required to explain the adult's physical and mental limitations and what type of guardianship is recommended. The petitioner also must be knowledgeable of the adult’s wages, personal assets and financial obligations.
4. Court Hearing: When requesting guardianship, the petitioner is taking the disabled adult to court in order to restrict his or her decision-making powers. The adult has a right to an attorney in order to contest and prevent the guardianship. Depending on the adult’s level of awareness, he or she may feel embittered because of the prospect of losing his or her rights as an adult.

Deciding on Guardianship

Advocates for disabled adults prefer that potential guardians seek alternatives to full guardianship. Courts do grant limited guardianship, which gives the guardian control over specific aspects of a person’s life. A DuPage County family law attorney at Calabrese Associates, PC, can advise you on whether it is necessary or wise to seek guardianship of a disabled adult. Schedule a consultation by calling 630-393-3111.

Source:

https://www.illinoislegalaid.org/legal-information/starting-guardianship-adult-court-case