As a child with autism spectrum disorder begins approaching the age of majority, guardianship may be proposed to parents to ensure the child’s safety and wellbeing into adulthood. Usually, the age majority is the age of 18. Typically, neurotypical and neurodivergent minors become emancipated from their parents at 18.
This article discusses considerations when deciding whether to obtain guardianship over someone with autism. More specifically, this article answers the following questions:
- Are there alternatives to guardianship in adults with autism?
- What should potential guardians consider?
- What factors do courts weigh when considering guardianship of my autistic child?
Are There Alternatives to Guardianship in Adults with Autism?
Many individuals on the spectrum have strengths that, when developed, could allow self-determination and growing independence. O’Flaherty Law attorneys can suggest alternatives to guardianship that consider the autistic individual’s strengths. If the individual on the spectrum has the potential to function on their own in certain areas, they should not be deprived of an opportunity to enjoy some of the rights that arise upon adulthood.
Other options may often be appropriate solutions for individuals on the spectrum, like
- limited guardianship
- or partial guardianship
- or Supported Decision-Making
What Should Potential Guardians Consider?
Parents of minor or adult children on the spectrum should
- gather expert opinions from their child’s
- healthcare team
- education team,
- research extensively about guardianship and alternatives
- obtain help from a legal professional before approaching a court for petitions about guardianship or conservatorship
Careful thought should be given about the rights the autistic child will be deprived of should a parent obtain guardianship over the individual. Guardianship could deprive your child of
- the right to get married
- the right to vote
- most of their autonomous decision-making rights
- being able to buy or sell property
- being able to enter into contracts
- their rights to conduct business
What Factors Do Courts Weigh When Considering Guardianship of my Autistic Child?
The individual on the spectrum may
- be represented by a lawyer
- have a jury trial and present evidence, and cross-examine witnesses.
Where appropriate, the court will appoint a third-party attorney or another person to serve as the guardian ad litem.
The guardian ad litem (“GAL”)
- acts as the “eyes and ears” of the court
- advocates for the best interest of the autistic individual
Before the hearing, the GAL must
- interview the individual,
- inform individuals of their rights
- investigate the appropriateness of guardianship
If the individual disagrees with the opinions of the GAL or opposes guardianship, the court may appoint an attorney to represent the individual.
At the hearing, evidence is presented about the
- Individual’s health
- Mental faculties
- Finances
- Housing
- Lifestyle
The GAL reports their findings regarding the individual on the spectrum to the court and may recommend the type of guardianship needed.
The court reviews all the information presented, including
- the physician’s report
- the testimony of witnesses
- the testimony of the GAL
Finally, the court either enters a limited or plenary guardianship order or finds that no guardianship is needed.
If you want to know more about guardianship, don't hesitate to get in touch with us. To request a consultation with an O’Flaherty Law attorney, call our office at (630) 324-6666, or you can also fill out our confidential contact form, and we will get back to you shortly.
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