When a child with disabilities reaches the age of majority, typically 18 years old, parents may need to consider pursuing guardianship to continue making important decisions on their child’s behalf. Guardianship grants legal authority to a guardian to make decisions related to healthcare and other important matters for an individual who is incapacitated or unable to make decisions independently. In this article, we’ll provide valuable insights into how to get guardianship for a child with disabilities in Massachusetts.
Assessing the Need for Guardianship
The first step in obtaining guardianship for a child with disabilities is to assess whether guardianship is necessary. Guardianship may be appropriate if the child lacks the capacity to make informed decisions independently due to their disabilities. This may include individuals with intellectual or developmental disabilities, mental illness, or other conditions that impair their ability to understand and manage their affairs.
Filing a Petition for Guardianship
In Massachusetts, the process of obtaining guardianship begins with filing a petition with the probate court in the county where the child resides. The petition must include detailed information about the child’s medical or mental health conditions, their need for a guardian, medications and the proposed guardian’s qualifications. You also will need a Medical Certificate from a qualified medical professional explaining why the potential incapacitated person needs a guardian. It is essential to carefully complete the petition and provide supporting documentation, such as medical records or evaluations, to demonstrate the child’s incapacity and the necessity of guardianship. If your child is intellectually disabled, you will need an additional Clinical Team Report. If your child is taking anti-psychotic medication, you will need an additional Clinician’s Affidavit and proposed Treatment Plan.
Court Procedures for Guardianship
Once the petition is filed, the court will issue a Citation and set a Return Date. The Citation is the notice and includes a Return of Service to be completed. This shows that all interested parties have been served if they have not otherwise assented. You may also have to publish notice in the newspaper. Service on all but the proposed incapacitated person can be waived if interested parties assent to the filing. Generally, both parents and any siblings must either be served or assent. The Return Date is the date by which any objections to the guardianship must be filed.
Court Evaluation and Appointment of Guardian
Once the petition is filed, the court may appoint an attorney to represent the child’s interests and/or may appoint a guardian ad litem to investigate the case and make recommendations to the court. The court will also schedule a hearing to review the petition and determine whether guardianship is warranted and you are appropriate to be appointed. If the court finds that guardianship is necessary and in the child’s best interests, it will issue an order appointing a guardian and granting them the authority to make decisions on behalf of the child.
Obtaining Guardianship for a Neurodivergent Child
Consider a scenario where a neurodivergent child is about to turn 18, and their parents recognize the need to obtain guardianship to continue making decisions on their behalf. The parents gather documentation from the child’s healthcare providers, and mental health providers to support their petition for guardianship. They file the petition with the probate court and attend a hearing where they present evidence of the child’s incapacity and their qualifications to serve as guardians. The court appoints the parents as guardians and grants them the authority to make decisions for their child.
Consulting with an Attorney
Navigating the process of obtaining guardianship for a child with disabilities can be complex and overwhelming. It’s essential to consult with an experienced guardianship attorney who can guide you through the legal process, advocate for your child’s best interests, and ensure that all necessary steps are taken to secure guardianship. An attorney can help you gather evidence, complete the petition accurately, and represent your interests in court.
If you’re considering obtaining guardianship for your child with disabilities in Massachusetts, don’t hesitate to contact Attorney Eric Schutzbank. He is dedicated to providing compassionate guidance and sound legal representation throughout the guardianship process. Schedule a consultation with Attorney Schutzbank today to learn more about how his office can assist you in securing guardianship for your child and ensuring their well-being and protection.
