Guardianship can be a critical component of special needs planning, as individuals with severe disabilities who cannot manage personal and financial affairs may need guardians upon turning 18. When children with significant cognitive or developmental disabilities become legal adults, their caregivers may lose the lawful ability to help with personal, health, and financial decisions unless they secure legal guardianship.
If you have recently been appointed as Guardian, or are interested in becoming one, read our article What to Do if You are Appointed Guardian of an Adult to learn more.
Balance Between Protection and Independence
Courts may restrict the rights of the person subject to guardianship (known as Wards in some states), such as the ability to contract on their own. At the same time, the following are ways that the state protects the individual rights of a person under guardianship.
Guardians Must Promote the Individual’s Independence
Guardians should exert the least amount of control necessary, while a person under guardianship should have as much input as possible in making decisions. The appropriate amount of independence depends on the severity of the individual’s cognitive impairment and level of decision-making ability.
The choices a guardian makes should promote the individual’s health, safety, well-being, and independence and act in their best interests. However, some guardians unnecessarily restrict their wards’ freedoms, reducing their quality of life.
Liberties of People under Guardianship
Even under a guardianship, a person under guardianship retains many fundamental freedoms. Caregivers and advocates of people subject to guardianship should know these rights so that they can prevent guardians’ control from becoming overly restrictive.
State laws govern guardianships, and numerous states have passed legislation to safeguard the rights of wards. The American Bar Association reported that, since 2015, 18 states have enacted laws protecting wards’ rights, while other states have strengthened their laws. Many states have passed versions of a Guardianship or Ward’s Bill of Rights, with rights including:
- Access to a lawyer and the power to ask the court for relief
- Appropriate treatment
- The ability to visit and communicate with friends, family, community members, and others
- Regard for the ward’s spiritual beliefs and wishes
- The highest possible level of control over their own affairs
A person under guardianship retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and U.S. constitutions and all the laws and regulations of Vermont and the United States. These rights include:
(1) The right to participate in decisions made by the guardian and to have personal preferences followed unless:
(A) the preference is unreasonable and would result in actual harm; or
(B) the person under guardianship does not have a basic understanding of the benefits and consequences of his or her chosen preference.
(2) The right, without interference from anyone, to retain an attorney and to communicate freely with counsel, the court, ombudsmen, advocates of his or her choosing, and other persons authorized by law to act as an advocate for the person under guardianship.
(3) The right to retain an attorney and seek legal advice independently without consent of the guardian, provided that any legal fees not authorized by the guardian are subject to review and approval by the court.
What to Do When You Suspect Abuse
Abuse by a guardian is illegal. Family, friends, and concerned individuals should know the signs of abuse and take action if they suspect a guardian is not acting appropriately. Signs of possible abuse by a guardian include:
- Preventing the person under guardianship from seeing others
- Deterring the adult under guardianship from consulting a lawyer
- Bed sores
- A decline in physical and/or mental health
- Moving the person under guardianship repeatedly without regard for the their best interests
- Stopping the individual from seeing a doctor.
Our office works with a lot of guardianship cases representing both proposed guardians and proposed persons under guardianship. For assistance, please contact our office.
Attorney Claudia Pringles has done several workshops and webinars related to guardianship. Sign up for our Special Needs Newsletter to be the first to know when another class is happening.