Denise is a former School Psychologist and Special Education Director. She understands the challenges facing those with disabilities.
What is guardianship?
Each state has laws indicating when a person is of "legal age" to make their own choices without interference from parents or other adults. Until that time, parents are held accountable for the actions of their children, and children are tried as juveniles when laws are broken.
Once the legal age of adulthood is reached, however; individuals are held accountable for their own actions and are able to be tried in "adult court." They are given the same consequences as other adults when they have broken the law.
Guardianship is basically court ordered parenthood. When an adult individual is incapacitated to the point that they are unable to make legal and appropriate decisions concerning their own medical care, finances, residency, and/or possessions - regardless of their legal age - guardianship can be established through petition to the resident court.
The guardian is responsible to the court and society for helping the individual manage their affairs. Guardians can be parents, other relatives, human services personnel, or members of organizations that provide guardianship as a professional service (see resident state government human services website for state guidelines, for example: North Dakota).
Guardianship can be all encompassing or limited, depending upon the needs of the individual in question (the "ward"). Prior to the hearing for guardianship, the circumstances of the ward are reviewed from different perspectives, including their own, the person petitioning for guardianship, and medical providers. The findings are presented to the court and the judge determines the need for, and extent of, the guardianship, establishes parameters, and sets a course of action.
At what point is mental illness considered a disability?
The Americans with Disabilities Act (ADA) defines a person with a disability as "a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment."
Major life activities are those things that enable a person to function normally in society such as breathing, walking, seeing, hearing, sleeping, and talking. A person may be physically or mentally impaired, and yet function normally in society with the use of medication, equipment, and/or the assistance of loved ones. It is not until functioning in society is severely limited that the impairment becomes a disability and entitles the person to protection under the law.
The ADA website answers the question "Does a person with depression have a disability under ADA?" by responding: "You might think the answer would be 'no' because depression does not seem to substantially limit any specific major life activity. However, someone who has had major depression for more than a few months may be intensely sad and socially withdrawn, have developed serious insomnia, and have severe problems concentrating. This person has an impairment (major depression) that significantly restricts his ability to interact with others, sleep, and concentrate. The effects of this impairment are severe and have lasted long enough to be substantially limiting."
Individuals with mental illnesses that are unable to be financially responsible, medically self sufficient, and socially appropriate may need ongoing assistance. Parents, relatives, and other responsible individuals can be court assigned to assist them through guardianship. In this way, legal protection is given to the incapacitated individual by allowing responsibility for their care to be placed on others.
Guardianship enables social programs to be accessed
Once guardianship is established, the ward can access a variety of social programs. State sponsored human services agencies provide heating and fuel assistance, food stamps, dependendent respite care, foster care, vocational rehabilitation, case management, substance abuse treatment, and mental health services.
Adults who are incapacitated are not in a position to advocate for themselves, or to complete the necessary paperwork to obtain these services. The guardian can legally stand in the place of the ward and sign documents in their behalf. Depending upon the provisions of the guardianship, they can complete financial transactions, make residential placement decisions, receive confidential information from health care providers, apply for Social Security disability benefits using the online application system, communicate with entities providing services, and make other important decisions when the ward is not in a position to do so.
Guardianship provides a great deal of protection to the individual ward and their family. Should the ward refuse treatment when it is in their best interest, the guardian can legally step in and see that treatment is obtained. This includes both the taking of medications for mental illness and mental health hospitalization. In all aspects of the guardianship, the guardian is to consider what is best for the ward by asking the following questions (taken from page 5 of the Guardianship Handbook found on the North Dakota Government Human Services website):
- Is this decision within the limits of the guardian's authority?
- What, if any, are the alternatives?
- What is the risk to the ward if the action is taken?
- What is the risk to the ward if no action is taken?
- Is it in the best interests of the ward?
- Is it the least restrictive or intrusive action or treatment available?
- What are the ward's feelings about it, and what are his or her preferences?
- Is the action or treatment congruent with the values and beliefs of the ward?
- What are the possible outcomes or consequences of each of the proposed actions or treatment options?
When the guardianship includes financial jurisdiction, the guardian can step in if the ward makes decisions that are financially irresponsible. The ward can be protected from those who would prey on their vulnerability. Other types of social irresponsibility can also be avoided; however, the guardian must always do what is in the best interest of the ward. The guardian reports on a regular basis to the resident court, and should the court find that the guardian acted in a manner to harm the ward, the guardianship can be legally revoked.
This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.
© 2012 Denise W Anderson
Denise W Anderson (author) from Bismarck, North Dakota on January 23, 2015:
Thanks for sharing your experiences, Michellelynng. Guardianship must be evaluated on a regular basis. As life circumstances change, the need for supervision changes. If our daughter were to enter a marriage relationship, I could see us stepping out of our role of guardians or moving to a more limited, as needed basis.
Michelle Harrelson on January 23, 2015:
My husband used to be on full guardianship. I think full guardianship goes too far; it dicitates a person's life. I feel limited or more tailored guardianship can help. A family member should always be the guardian unless; there is no one who is capable of being a guardian or is abusive. I will write my own hub on this topic at some point because I have seen first hand the abuses and neglect that can come from a guardian.
Denise W Anderson (author) from Bismarck, North Dakota on October 09, 2013:
That is great, CraftytotheCore! Your efforts have paid off and your son will benefit from the things that you have done. Our daughter was on her own for a while, and we had hopes that she would be able to remain so. Unfortunately, her disability worsened as she got older, and she had to be hospitalized. Realizing that the problem may be recurring, we followed the advice of her physicians and obtained guardianship. She lives with us at home, and we have custody of her funds, as well as the legal right to change her placement should the need arise. It has been a protection for all of us.
CraftytotheCore on October 07, 2013:
Someday I may be faced with this. My son has Autism. With proper attention from the right doctors and therapists, he has made great strides in life. However, my hope is that all the effort will pay off when he is old enough to go on his own.
Denise W Anderson (author) from Bismarck, North Dakota on October 27, 2012:
Thanks teaches 12345. I appreciate your vote of confidence. Parenthood is not an easy endeavor. Parenting a child with disabilities only gets harder as they get older, especially when mental illness is involved. Thankfully, there are laws in place that help us protect them and ourselves, as well as provide a way for them to become productive members of society.
Dianna Mendez on October 27, 2012:
I voted this up due to the excellent topic and advice. If people who have family members needing this support would take your advice, we would have less societal intervention that is inadequate and better loving provision for those who need the help.
Denise W Anderson (author) from Bismarck, North Dakota on October 25, 2012:
Thanks eHealer and MsDora for your comments. I appreciate you stopping by and reading. It has been an eye opening experience to have my own daughter in a position to need guardianship. I have learned a lot in the process, and I'm sure will continue to learn as we go forward.
Dora Weithers from The Caribbean on October 24, 2012:
Topics like this really need to be discussed. Thanks for clarification on when an impairment is and is not considered a disability. I appreciate you for researching and presenting this information. Voted Up and Useful.
Deborah from Las Vegas on October 24, 2012:
Hello Denise, this is an extremely important issue that sometimes goes overboard and protects people who are challenged with no help at all. I've had mentally challenged people with poor impulse control and made very bad decisions that put them in harm but were not considered "impaired" by the statutes. In addition, people who ask for help may not meet minimal requirements for guardianship. Excellent hub and very though provoking. Thanks!