Guardianship

Historically, from Roman times through the English notion of “common law,” guardianship as a protective device was developed to preserve the property of an “incompetent person.” Relatively recent the concept of “guardianship of the person” was established as a separate format wholly distinct from matters relating to money. The precept of least restrictive, which provides for minimal intrusion and the removal of fewer rights have guided even more recently, courts and legislatures by recognizing a partial or limited form of guardianship. This and other developments reflect the profound changes in American jurisprudence during the past 20-25 years with respect to the rights of all persons with disabilities. Such changes clearly represent the progress of disability-related legislation and programmatic development using Wolf Wolfensberger’s principle of normalization, where everyday life and living for persons with disabilities should be as close as possible to the regular circumstances and ways of life of their society.

A further legal development has been the recognition and application of due process rights, as guaranteed by the 5th and 14th Amendments to the U.S. Constitution, relative to persons allegedly requiring the services of a guardian. In Michigan, this means that a person with a developmental disability who may require a guardian shall have: the right to an attorney; the right to a trial by jury; the right to present evidence; the right to cross-examine witnesses; and the and the right to have the hearing closed to the public. Such recognition of constitutionally-established due process rights confirms that, in fact, the appointment of a legal guardian represents the “taking” of corresponding rights away from a person when a guardian is given authority over certain aspects of another’s life.

Once a child reaches the age of majority the parents’ status as guardian terminates automatically by law. This is true for any child including those with mental retardation or other developmental disability. Only through appointment as guardian by a probate court, where a judge declares someone legally incompetent, can this formal legal relationship continue. Michigan’s Mental Health Code, for example, allows for the appointment of a guardian of the person who is developmentally disabled only when it is necessary and if the person lacks the capacity to perform some of the tasks usually required for self-care and/or the maintenance of personal finances, or if that person is totally without the capacity to care or such matters.

Parents do, however, have a number of other alternatives available, and can play many significant roles without removing rights from their adult child. A parent can act as “next of kin” in medical situations, as a “representative payee” when handling governmental financial benefits, a “trustee” of a private trust, as a readily recognized advocate, or even as the holder of a “power of attorney.”

In summary, the vast majority of parents desire to obtain some level of security for their children, but security lies far beyond the appointment of a guardian. Security really lies with appropriate quality education, vocational rehabilitation and training, financial assistance programs and other governmental benefits, appropriate quality residential living arrangements, laws protecting the rights of persons with disabilities, suitable recreation and social opportunities, and advocacy agencies that reach out to monitor and secure the necessary services in order to provide for a good quality of life that all people deserve in our society.

This article is an excerpt from our 50-page booklet entitled: “Planning A More Secure Future, 4th Edition.” For a more detailed and expanded discussion of this article, order the booklet.

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