Age of Majority and Guardianships
T. Bush 453 days ago

"My child is going to be 18 years old soon.  What should I know to prepare for this?"

  

I'm prefacing the information I share in this blog entry by stating that as an educator, I am not able or qualified to offer any legal advice. If you have specific legal questions please contact a licensed attorney.  You can also feel free to contact any of the resources I have listed at the end of this entry with legal (or other) questions.

 

Much of the information I share below comes from a session presented at the Life Conference held in Dover, Delaware on January 16, 2014.  The session was entitled "Guardianship of adults, Alternatives, Advance Healthcare Directives, and MOLST" delivered by the Community Legal Aid Society, Inc. and The Office of the Public Guardian.  I have borrowed extensively from the PowerPoint presentation provided at the session. 

 

In the State of Delaware all individuals have reached the "age of majority" and become their own legal guardian on their 18th birthday.  The state makes no distinctions based upon a person's circumstances or extent of disability.  What this means is that when a child turns 18 the parents of the child will, technically, not be able to access information (medical records, school records etc.) or make any medical or financial decisions for their child.  Unless parents take steps to retain guardianship or establish a legal mechanism to maintain some control they will lose the decision making abilities and general authority they had exercised to this point in their child's life.

 

In the IEP process we follow in school, we are to take note of the age of majority and to make sure parents understand what will happen when their child reaches this milestone.  The goal is to prevent parents from being suddenly shocked by the legal change in their status and to allow parents to prepare for this change.

 

In the State of Delaware, adult guardianships are filed in the Court of Chancery.  The Court of Chancery has offices in all three Delaware Counties (New Castle, Kent and Sussex).  Taking the steps to obtain guardianship over an adult should be a last resort and should only be considered when other alternatives to guardianship have failed or are no longer appropriate.

 

Alternatives to guardianship include establishing a representative payee, case/care management systems, trusts, establishing a joint checking account, establishing a durable power of attorney, establishing an advanced health care directive or establishing a health care surrogacy.  Whether any of these options meet the needs of you and your child, or if obtaining guardianship is more appropriate, is something you will have to determine.

 

So what are guardianships anyway?  Guardianships can provide extra protection for an alleged disabled person since they require the Court to review evidence before they are approved and the Court continues to monitor them until they are terminated.  Potential guardians may find it easier to speak to medical providers, apply for public benefits and handle financial matters on behalf of the alleged disabled person once they are appointed guardian by the court.

 

As mentioned earlier, in the state of Delaware, the Court of Chancery has the authority (12 Del. C. Ch. 39) to appoint a guardian of the person and/or property of a disabled person if as a result of their disability the alleged disabled person may be in danger of being taken advantage of, suffering property loss, being abused/neglected or substantially endangering their own health.

 

"Disabled person" means an individual 18 years of age or older who is unable to care for their person and/or property by reason of physical and/or mental impairment.  A "guardian" is a person, or persons (co-guardians), appointed by the Court to make medical and/or financial decisions for a disabled person.  The Court, upon request or petition, can appoint different types of guardians.  Guardians do not have to be permanent or plenary.  Based upon the evidence presented to the Court in the petition for guardianship and the Attorney ad Litem report, the Court may appoint an interim/emergency guardian, a temporary guardian (rare), a limited guardian (with only selected powers under 12 Del.C. 3921 et seq.), or a plenary guardian (with all powers).

 

The Office of the Public Guardian may be appointed to serve as someone's guardian if no alternatives to guardianship are available and if there is no other individual willing or able to serve.

 

Depending on the circumstances an individual could be appointed as the Guardian of the Person, the Guardian of the Property or as both types of guardian.  The guardian of the person has the authority to make decisions about the personal and medical care of the disabled person.  This could include deciding where the disabled person will reside, resolving medical issues and providing consent for medical treatment(s) as needed, advocating on behalf of the disabled person, attending care planning meetings, if applicable and making medical and dental appointments.  The guardian of the property is able to make decisions about the financial welfare of the disabled person.  These financial decisions could involve handling the disabled person's bank accounts, investments, personal property and real estate, applying for social security benefits for the disabled person, filing taxes on behalf of the disabled person if applicable, and filing an inventory 30 days after the guardian appointment and yearly accountings with the Court if applicable.

 

All guardians must file an Annual Update and Medical Statement (AUMS) with the Court each year.  The AUMS reports the current geographical information of the guardian and the person subject to guardianship as well as includes a physician's affidavit noting the necessity (or not) of continuing the guardianship.

 

The Court actively monitors and provides oversight to guardianships.  There are instances when a guardian must file a petition with the court and receive prior approval before making certain decisions or taking certain actions.  It is always important to contact the Court and speak with staff in the Register in Chancery if you have questions regarding your authority as a guardian.

 

A lot of basic information was presented above and to be honest it only scratches the surface.  You may need some resources as you investigate these issues.  I've listed some below.

 

Delaware CarePlan Inc. (302) 633-4000

  • Administers trust funds and provides care planning for individuals with disabilities
  • Advice and counsel to guardians

 

Private organizations

  • Senior Partner, Inc.  (302) 764-7880
  • Life Solutions, Inc  (302) 622-8292

 

Government agencies

  • Register in Chancery  (302) 255-0544
  • Delaware Money Management Program  (800) 223-9074
  • Office of the Public Guardian  (302) 674-7460

 

Private Attorneys

 

Disabilities Law Program

  • New Castle County  (302) 575-0660
  • Kent County  (302) 674-8500
  • Sussex County  (302) 856-0038