A client came to see us last week. Her 17-year-old son has a developmental disability, and she wanted to get a start on things she would need to do before age 18. She had heard about guardianship at age 17½ and wondered if she should plan on initiating such a proceeding.
Arizona Guardianship Law
About a decade ago, Arizona adopted a new statute. It allows a guardianship proceeding to be initiated for someone who is incapacitated before age 18. Previously, parents would have to wait until their child was 18 before initiating an adult guardianship action.
Why did they do this? Because of the perception that a gap needed to be covered. What if your son or daughter required medical attention right after turning 18? Would doctors refuse to treat them, or would parents lose access to medical information or case management concerns?
So if you have a child with a developmental disability, for example, you can actually file the adult guardianship petition after age 17½ but before age 18. That gives the courts six months to complete the process. By that time the guardianship should be in place.
But is it important to do this?
Here’s the reality (under Arizona law, at least): you still have the authority to make medical decisions for your 18-year-old child with a disability. In fact, you have the authority to make medical decisions (and get medical information) for your incapacitated 45-year-old child. That’s because Arizona has a “surrogate decisionmaking” law giving next of kin the power to make such decisions and access information.
To be thorough, we could mention that you only have that power of you’re highest on the list of relatives. If your 18-year-old (or your 45-year-old) is married, spouses have priority. In the same way, their adult children have priority (though it’s pretty hard to figure out how your 18-year-old might have acquired an adult child). But here’s the thing about that: if you file for guardianship, those same people (if they exist) have priority over you for appointment as guardian, too.
Are you going to be able to talk with your child’s case manager from the Division of Developmental Disabilities? Yes. And if you have problems, you could always start the guardianship process later.
The DDD case worker said I have to do something before age 18
They probably didn’t, but the confusion is completely understandable. Federal and state law require the caseworker to “address” the need for guardianship. But guardianship is not a requirement for continuing services. And the case worker was probably telling you that you should consider guardianship before age 18.
If you don’t initiate the guardianship at age 17½, you might hear from the case worker in future years. They’ll just be fulfilling their requirement that guardianship has been addressed.
Why not just get the guardianship and be done with it?
There are handful of bad things that happen if you pursue the guardianship. One of the most potent is the cost of the proceeding.
Even if you file a guardianship proceeding on your own (which you can do), you’ll pay a little more than $500 for the filing fees, service of process, certified copies and the like. And if you hire a lawyer, you’ll likely pay another $2,500 or more. And it’s not super-easy to figure out how to move the guardianship process forward on your own.
On top of that, the court will automatically appoint an attorney to represent your child, and an investigator to file a report with the court. They will charge fees, though they are charged to your child rather than to you. If your child has no assets that might not mean that there is any cost, but those appointees might end up costing you more by raising questions and concerns.
Voting, driving, and annual court reports
There are other problems with guardianship. Until this past Spring, appointment of a guardian automatically required suspension of your child’s right to vote. That changed with a court decision in a case called Wood v. Coconino County, but there is still the possibility of further problems with voting.
Appointment of a guardian can result in automatic suspension of the right to drive, the ability to obtain or possess firearms — even the right to get married (or divorced). For many adults with disabilities, these are mostly theoretical limitations, but still they can be troublesome.
And then there’s the annual reporting requirements. Under guardianship the courts require an annual report accompanied by a recent doctor’s visit (and a form completed by the medical provider). That can be annoying, cause disruptions, and make it seem like the court is trying to tell you how to care for your child. That’s partly because the court is trying to make sure you understand that they can tell you how to care for your child.
What about managing money?
The Social Security Administration can appoint you as your child’s “representative payee”. That can give you authority to handle SSI (Supplemental Security Income) and/or SSDI (Social Security Disability payments). That might be all that your child ever needs to have managed.
Anyway, a guardian has no power to manage money. So if they do have assets or income (other than from Social Security) you’ll likely need to file for a conservatorship. Don’t even get us started on the difficulties with that process.
Are there alternatives?
Yes, there are. We described one above: do nothing. You probably have all the power and authority you need.
Another option: look into a power of attorney. Your adult child can sign a document allowing you to make medical decisions, and another for financial matters. They have to be able to understand what they’re signing, but that doesn’t mean they have to be able to understand the decisions they’re letting you take care of. Talk to a lawyer about getting powers of attorney. You can do it yourself, but the lawyer is a nice way to clarify that an independent person has considered your child’s understanding and wishes.
Here’s an option that we do not particularly support (at least in Arizona): “supported decision making.” It’s a new idea (it’s only been available in Arizona for a few months). The Arizona law is, frankly, deficient. You might feel better if you complete the complicated form, but a power of attorney is a far better and more powerful option.
By the way: more than a decade ago, we wrote about the things you might consider as your child nears age 18. We think our advice is still good, though we were writing just before Arizona allowed guardianship petitions before age 18. Here’s that earlier article, in which we talk about UTMA accounts, child support orders and custody arrangements, graduation and even your own estate planning.
