Recognizing the Changing Face of Guardianships

In Idaho, as well as nationally, we are seeing a shift away from the traditional, ‘full guardianship’ approach that has been followed by medical, educational and legal communities for many decades. This article highlights how the team at C.K. Quade Law is ahead of these changes as we advise families. We will discuss the least restrictive approach for planning around your developmentally disabled person: “person-centered” planning.

What is guardianship? It is a court appointment for providing protection and support to someone with diminished capacity. More specifically, a ‘full guardianship’ grants authority over a person with developmental disabilities to someone, often a parent, to make all decisions for that person. It may be helpful to describe guardianships as substitute decision making, while lesser approaches, such as a power of attorney, would be considered supported decision making.

This recent shift away from full guardianship is motivated out of a desire to ensure the autonomy of the person with developmental disabilities and encourages “person–centered planning”. The hope of everyone involved remains the same as always:  providing support in an effort to maximize self-determination, the ability to decide one’s own fate.

This move away from the traditional approach has affected every community: legal, medical and educational. Power of attorney documents and supported decision-making better help achieve the intended self-determination and autonomy of a person with developmental disabilities and should now be considered before seeking a guardianship. For example, if a 17-year-old is diagnosed with ASD and has a high IQ but difficulty assimilating into their role as an adult following high school, agencies such as the school counselor or health and welfare worker may be your first contact. Until recently, in this type of circumstance, you would be told to seek legal counsel to secure a full guardianship. The new norm is now the opposite; these same agencies may tell you NOT to seek guardianship.

What does this mean for you? As a young adult transitions from child to adult at age 18, their family should first discuss whether a team of supporters could be rallied and a supported-decision documentcompleted. The next step, and possibly in conjunction with a supported-decision-making team the young adult could execute a medical power of attorney with their developmentally disabled adult. It is only after exhausting these lesser approaches that the family should seek a limited guardianship.

At C.K. Quade Law, the team full counsel our clients on person-centered planning, instituting the person’s needs first with community and family supports rather than obtaining legal guardianship. We understand what these changes mean for you as you consider your developmentally disabledperson’s needs, and we can help you determine how to best support them in their independence. We discuss educational concerns, employment options, benefits, opportunities and other critical areas. Like the new approach, we believe the least restrictive measures should be tried first.

Our firm offers a free initial consult to discuss which method best meets the needs of your loved ones.