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Guardianships for Disabled Children Turning 18

Edward Zetlin Law represents parents who need to obtain guardianship when their disabled child turns 18. As an uncontested matter, from the attorney’s perspective the procedure is uncomplicated and routine. However, parents are understandably anxious and have questions about the complexity of the process. A general understanding of the process may help to allay such concerns.

Guardianship/Conservatorship

Both actions are court determined. A person must be declared incapacitated by the court in order for a guardianship and/or a conservatorship to be granted. Guardianship refers to the personal decision making aspects and conservatorship refers to the financial and asset control aspects. Because a child turning 18 generally has no assets of their own, a guardianship action is all that is needed.

Knowing that a guardianship is needed when your disabled child turns 18 is the first step. Of course, not all disabled children may need a guardianship. Let the attorney help assess whether your child meets the statutory criteria of incapacity and whether a guardianship is required or not required.

Evaluation Report

The attorney must first obtain an Evaluation Report of the Physical/Mental condition of your child. This is routinely a form the attorney sends to your child's, physician, psychiatrist, psychologist who can best respond to questions about your child's ability to consent to treatment, make decisions concerning his or her treatment, and manage financial affairs.

Drafting the Petition

Once the evaluation is returned to the attorney, a petition for guardianship can be drafted by the attorney. The petition requires specific issues addressed. A knowledgeable attorney can address those issues without problem.

Appointment of Guardian Ad Litem

When the petition is filed a request is made for the court to appoint a Guardian Ad Litem (GAL). The Guardian Ad Litem is another attorney, specifically qualified, who assists the court in addressing two issues. Does the alleged incapacitated child meet the statutory requirements of incapacity and are the proposed guardian(s) suitable to be appointed by the court. The GAL will meet with the disabled child, assure that their rights are protected and also meet with the proposed guardians, usually the parents.

The Notice

A special notice is required with pre-printed language informing the incapacitated person of their rights. The notice must also be sent to other family members as designated in the statute.

The Hearing & Qualification

The hearing before the court is usually short (10 minutes). In Virginia the incapacitated child is not required to be present. The proposed guardian(s), the attorney and the GAL appear before the judge. After the court signs the Order of Guardianship, the guardian(s) must meet with a probate clerk to administratively qualify and receive their certificates of guardianship.

Of course, you may have additional questions. Edward Zetlin Law would be happy to discuss. Please contact us at 703-379-0442 or e-mail at ed@zetlinlaw.com

Community Presentations in November for Ed Zetlin

On November 9, 2015 Edward Zetlin will be taping a program for Fairfax Aging Services on the community access channel 16 for a program called Mature Living. Mr. Zetlin will be on a panel that will address fiduciary duties in managing someone else's money. Look for a further announcement of when the program will broadcast.

Contact us at (703)379-0442; ed@zetlinlaw.com


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