A Comprehensive Cerebral Palsy Resource

Guardianship

As a parent of a child with cerebral palsy, you may be wondering who is going to care for your child in the event of your death.  The legal process of guardianship helps you to make the necessary designation.

How is Guardianship Established?

Any individual who believes another individual may need a guardian can file a petition to have a guardian appointed for him or her.  The petitioner may also arrange for examination by a medical professional or psychologist to help build a case.

A hearing is scheduled after the court receives a petition.  Both parties hire lawyers, or use an appointed one if they cannot afford their own.  If there is no opposition to the petition, the judge usually grants the petition.  If either a physician or psychologist finds the individual (called a “ward”) is incapacitated, the court grants the petition.

If there is disagreement about the guardianship of the ward, a trial may be necessary.  The judge hears testimony from all concerned parties.  The judge also may appoint “visitors,” who eventually report back to the court, to examine the ward’s current residence and proposed place of residence.

Finally, guardianship is granted or denied by the jury and judge.

What Types of Guardianship are There?

3 different types of guardianship available  for your child with cerebral palsy.  If none of your family or friends are willing or able to be a guardian for your child, there are many nonprofit organizations who handle such situations.  The severity of your child’s condition is one of the largest factors that will help you decide which type of guardianship is best for his or her situation:

Guardian of the Person

This type of guardianship means the appointed guardian can have custody of the child, but has no control over his or her money or property.  If your child is under the age of 18, the guardian also has the duty to make sure he or she receives a proper education, and that he or she has the opportunity to learn a profession.  The court may require the guardian to obtain permission for some decisions.

Guardian of the Estate

A Guardian of the Estate has the responsibility to protect the property of your child.  Money not needed to care for your child must be invested in a reasonable way.  He or she must pay all bills as well and keep separate financial records for your child.  Bank trust departments may be appointed as a Guardian of the Estate in the case of large estates.

Limited Guardian

A limited guardian is appointed specific powers by the court and is used in cases where your child can take care of most of his or her own needs.

How Does Guardianship Compare to a Power of Attorney?

The process of appointing a guardian is more time-consuming and takes longer.  A power of attorney is also appointed by the person concerned, rather than for the person concerned.