Getting Guardianship for an ESE Student
Once an individual turns 18 they are deemed to be a competent adult. They retain this right until they die or until a court enters an order that says that they are not competent. When a child with an exceptionality is turning 18, they may be unable to make their own decisions. As a result, a family member might consider getting guardianship of the student to assist in this process. Before asking for a guardian, it is important to consider other options.
What is a guardian?
A guardian is someone appointed to make legal decisions for another person (called the ward). Guardianship is a legal proceeding in court. When a court gives powers to a guardian, they take those rights away from the individual. Once in place, guardianship can only be removed by a court order.
Because guardianship deprives an individual of their right to be accommodated and supported, it should only be used when necessary. Removing a person’s rights makes them more vulnerable, not less. Most people with exceptionalities are able to take care of their own lives without a guardian. For that reason, it is important to look at alternatives before seeking out guardianship.
What are the alternatives?
There are alternatives to guardianship that can meet the needs of an individual without going to court. Everyone is different, and what works for one situation may not work for another. If you are thinking about guardianship or its alternatives, you should talk to an experienced attorney in the field.
Supported Decision Making
Supported decision-making can give individuals the assistance they need to make decisions for themselves. For example, family members and friends can help point out risks, advantages, and consequences of a decision. Things can be explained in a way that the person can understand, giving them information for making the choice. If someone can get the supports and services they need and want with the help of family and friends, there is no need for guardianship.
One Tool in supported decision making is the PRACTICAL tool which aims to help individuals, families and lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship.
Presume: Don’t automatically assume that guardianship is needed, presume competence
Reason: Clearly identify the reasons for concern
Ask: Ask if a triggering concern may be caused by a temporary or reversible condition Community: Determine if concerns can be addressed by connecting the person to family or community resources
Team: Ask the person if he or she had already developed a team for decision making
Identify: Identify areas of strength and limitations in decision making
Challenges: Screen for and address any potential challenges presented by supporters
Appoint: Appoint a legal support or surrogate consistent with the person’s beliefs and values
Limit: Limit any guardianship petition or order to only what is necessary
Students who are a ward of the state can request a surrogate parent from the school district.
A judge can appoint a person called a conservator to handle money, or property
Power of Attorney
A legal document that allows a person to give another person, called an Agent, permission to act on their behalf in one or more areas
A payee is a person who can manage an individual’s government benefits like SSI or SSDI payments.
Frequently Asked Questions
I still want to pursue guardianship. What is the process?
A guardian is appointed by the probate court at the request of a concerned person (petitioner) and after a hearing is held to consider the request. To make a request to the court, a concerned person must file a request on a legal document called a petition.
Where is the Petition Filed?
The petition must be filed in the probate court in the county where the individual lives or is located.
Who Can File a Petition for Guardianship?
The incapacitated individual, or a person interested in the welfare of the incapacitated individual, may file the petition. The petition states details about why a guardian is needed. The person that files the petition is known as the "petitioner."
What Happens Next?
The probate court clerk schedules a hearing date for a judge to consider the petition. The petitioner must deliver copies of the petition to certain people before the hearing date. Michigan Court Rules require that this be done in a certain way.
The court will appoint a guardian ad litem to represent the incapacitated individual unless the individual has his or her own attorney. Before the hearing date, the court may also order the individual to be examined by a physician or mental health professional and to submit a report to the court about the individual's condition.
Who may serve as a Guardian?
Any competent person may be appointed as a guardian. The person must be over age 18, suitable, and willing to serve. The law provides who has priority for appointment as guardian, which includes: the guardian appointed in another state for this individual, a person nominated by this individual, the person nominated in this individual's durable power of attorney, a person nominated by this individual as a patient advocate in a Designation of Patient Advocate. A judge may reject anyone to serve as guardian if the judge finds the nominated person unsuitable. The judge will appoint a professional guardian only if there is no one suitable from the above list of people.
- Guardianship Alternatives Information Network (GAIN) exists to help people with disabilities and their families make a good, informed decision about guardianship and its alternatives. 1-866-365-3231
- After I’m Gone Program assists parents of children and adults with disabilities in planning for their son or daughter’s future when they are no longer able to provide care.
- The Arc Michigan Rethinking Guardianship Resources
- Michigan Guardianship Law
- Probate Information Guardianship
- Information for Students and Families About Alternatives to Guardianship for Education Decisions
*Adopted from Michigan Alliance for Families