Photo Credit: The NY Alliance

In addition to the better-known alternatives to guardianship (Powers of Attorney, Healthcare Proxies, Trusts and Special Needs Trusts) supported decision-making is becoming an increasingly favored means to avoid the deprivation of rights that accompanies guardianship for persons with intellectual disabilities.

When parents or others contact an attorney about obtaining guardianship, it is important first to ascertain the reason guardianship is sought; often parents are motivated by having been told by their children’s school or others that it is necessary to obtain guardianship when their child turns 18 in order to continue to participate in her/his IEP. Similarly, they may have been informed that their ability to advocate for benefits is dependent upon becoming guardians. Neither of these is true, and it is important that attorneys make this clear.

In addition to disabusing potential petitioners of unnecessary reasons to seek guardianship, attorneys are well-positioned to encourage the use of supported decision-making, whether informal, or the result of a facilitation process that results in a Supported Decision-Making Agreement (SDMA), to alleviate parental concerns while maintaining all the legal rights of their children.

A useful tool for attorneys who represent potential petitioners is PRACTICAL, available on the ABA website.