More Planning, More Worries on Guardianship details

Discussion in 'Parent Emeritus' started by nerfherder, Mar 13, 2013.

  1. nerfherder

    nerfherder Active Member

    I am tossing back and forth between the various forms of Guardianship and making Kiddo a Ward of the State.

    My thinking: I am 50 now. Good health, physically strong, able to manage Kiddo physically when she throws a tantrum. I have backup from the Blacksmith when needed. However.

    With her pilfering, and any other behavioral changes that come to pass down the road, how liable will I be legally if she breaks the law? If she steals or damages something of real monetary value? I don't have much, very little in fact of any kind of asset, and I like that and plan to stay that way. But from watching other local parents who have to deal with adult children who are bipolar or otherwise functionally disabled, and seeing how much they have to spend on lawyers, legal fees, bail, etc... I just want no part of that at all. I can't be on top of her 24/7, I can't assume any assigned caregivers can keep her out of trouble if she wants it badly enough.

    My thinking: If I have her made Ward of the State once she's out of school (with guardianship of some kind in place to cover the gap in time between) I can at least be there to see and report if things go wrong, so by the time I'm incapable of being that kind of manager I'll know I can die and have reduced the likelyhood of her slipping through the cracks - and/or her big sister can take over if she chooses. Her dad would probably pitch in to some extent, but he's not trustworthy to give her the kind of focus that keeps her safe enough (and he's aware of that.)

    All opinions, thoughts and experiences are appreciated, thank you.
  2. Winnielg

    Winnielg New Member

    We are in the process of going thru this ourselves. I just joined this site and have posted on a few threads. I am glad, but sorry, to see others are having similar issues.

    My son is 17 - bipolar, ODD and Autism Spectrum Disorders (ASD) (aspie). We have looked into extending guardianship and have decided against it for similar reasons. What we are doing is in the event he cannot function completely independently as an adult (which is looking more and more likely), we are working to put a care giving system into place. In NY there is an agency called OPWDD - the Office for persons with developmental disabilities I applied to them last fall and had him declared disabled by the state and eligible for services. It is a weird process, but the bottom line is when he turns 18 in May we will go to Social Security and apply for supplemental disability in order to get Medicaid - which is what he needs in order to get ANY services in New York. Part of the services we are working on with a local agency now is putting together an ISP - Individual Service Plan - like the IEP while he is in school. The ISP will be geared toward helping him individually. In his case, he will need a case coordinator to help him coordinate medications, services, employment, etc. In NY it is called a CSS (or community service support) plan. Originally I started this in case we get hit by a bus, so to speak, but now with how bad things are in our home with violence and constant menacing, it may be necessary sooner rather then later for him to leave our home.

    As for guardianship - we were told there are two kinds - guardianship 'of person' or 'of property'. Of person covers EVERYTHING. Property is more geared toward financial oversight. The of person is scary because we are still learning what it would mean legally. I do not think if your child commits a crime you would be held responsible but if there was say damages - someone might be able to come after you. The lawyer we spoke to said it depends on the act. Further the of person is hard to ever lift. If someone is declared unable to take care of themselves it is usually for life. The 'of property' is more towards money oversight. That can be reversed with age, maturity, or however the original guardianship is defined. We are thinking of this one now.
  3. gsingjane

    gsingjane New Member

    Well, bear in mind that I'm almost certainly not admitted to practice law in your state, and that this is also not my area (so this isn't legal advice!) However, at least in terms of what I've seen in practice, once a person is 18 years of age, his or her parents are not legally responsible for anything that he or she does. A few potential situations come to mind that might entail some liability on your part - first, if there is an accident, injury, or intentional wrong-doing (such as an assault) that takes place, caused by your difficult child, on your property. There, I could see a plaintiff claiming against you with hopes of recovering on your homeowners insurance.

    Second would be if your difficult child commits a violation or causes an accident using your vehicle. There, again, there would be a claim against your auto policy.

    Outside of those situations, however, unless there are some strange circumstances that I'm not aware of, you have no legal responsibility for the actions of your difficult child once she reaches the age of 18. In point of fact, parents' liability for their minor children is also not unlimited, although that varies by jurisdiction.

    I'd be very surprised if, in the absence of some real, threatened physical harm (and probably not even then), your state would have much of an interest in stepping in to become your difficult child's guardian or responsible for her in any way. Once she turns 18, the legal responsibility for her actions will shift to her and her alone. You mention having your difficult child declared a "ward of the state;" outside of the minor context, I'm not aware that's available but again, perhaps in your state things are different. In New York State, for instance, someone can be declared incompetent and the court will appoint a guardian to manage the person and her property. If your thought is that you'd like the state to serve as guardian, I'd recommend contacting your state's Department of Mental Hygiene to get started. Having someone declared incompetent is not easy and will definitely involve going to court.

    All that said, practically speaking, of course, if your difficult child gets into legal trouble once she's an adult, you may feel a moral responsibility to pay for attorneys, court costs, bail, bonds, etc. You may wish, for instance, to provide a private attorney for her rather than a public defender, or to bail her out of jail rather than letting her stay there pending trial. Having a guardian appointed for her will not change any of that. I understand the worry and the fear, believe me I do, but unless your difficult child is locked away somewhere, this possibility will always be "out there."

    Hopefully the fact that once she's 18, you won't have legal responsibility for her actions, will put your mind somewhat at rest and you will not feel quite so worried that your difficult child will require a guardian. Good luck to you!
  4. buddy

    buddy New Member

    Can you do a co guardianship situation with your county?/state? I think that some here do that. I was told (but haven't gotten there yet so not fully educated, could be wrong) that is an option some choose.
  5. Hound dog

    Hound dog Nana's are Beautiful

    I don't know much about your difficult child. But I can say that Travis at 17 and Travis at say 20 were totally different.

    At 17 he was still lagging terribly behind and impulse control seemed to be something he would likely not be able to grasp. Travis at 20 was behaving closer to where he should've been at say 15-16.......things were beginning to take hold. Impulse control was still somewhat of an issue but not as severe as it had been. (he also pilfered food in vast amounts) But I was seeing changes, maturity. By 22 he went off to college alone to live in a dorm. He did the entire process of enrolling ect himself. (if my kid wants to go it's up to them to get it done, not me) It took him 2 yrs of trying, but he finally completed the process and set off to college. Now this was a campus set up to accommodate handicapped students and the dorms he used were for those students with non handicapped roommates to help them out. Still, the bulk of responsibility rested on his shoulders. He had to purchase his own food, manage his own money which was an extremely tight budget, get himself up to class ect. Scared me to death. But I'm proud as punch to say he did it, and did an amazing job. Shocked us and himself. It wasn't easy and he did far more maturing ect in that semester than in years prior.

    Now at 26, Travis is far more progressed/mature than he was at 17. The impulse control is not really even an issue these days. That strict budget taught him self control the hard way. Many of his old behaviors are gone or so minimal that they really aren't noticed. While at 17 the thought of him attempting to live alone scared the heck out of me, and he could not have managed it, at 26 he would do fine. He might be a hermit, but well......whatcha gonna do? lol

    I guess what I'm trying to say is that it might be too soon to decide that your difficult child will never be able to become independent in any sense. Could be she is still lagging far behind her peers and if given enough time and the right circumstances or motivation would eventually catch up.

    Travis is still obviously autistic and he still has his other dxes of course that cause him issues. But I no longer think of him lagging behind his peers. He's an adult who is autistic, which makes him a very different adult than others. But if he chose he could manage to live independently quite well even given his other disabilities. At one time I did worry I would need to seek guardianship, I'm glad now that I kept putting it off.

  6. nerfherder

    nerfherder Active Member

    Thank you everyone. Hound Dog, I'm not holding out much hope - but I've heard from others that some behaviors can ease off. I'll look at guardianship - my biggest thing is that having to be on top of her every minute while I'm trying to help this farm/ranch get off the ground (we're in year 3) is making me nuts. No free time at all ever, none of that well meaning "Gosh, you need to take some time for YOURSELF" etc, I can't go on religious retreats until she's safely group-homed (maybe another 3 to 5 years on that waiting list) and you know what? Sure, I hear some medications make the kids into compliant marshmallow zombies. I could use a few months of zombiehood. That's where my head's at lately. Got a consult with someone at the local mental health agency for her in a couple weeks, so we'll see.
  7. Hound dog

    Hound dog Nana's are Beautiful

    I know it's exhausting.......and I totally get the break issue. Travis was never medicated, although his docs did try. I wouldn't do it except his seizure medication. I can be terribly stubborn. I just couldn't see how he would ever learn to adjust behaviors on medication to mask those behaviors. Seventeen was an awful age for Travis, 18 wasn't a whole lot better. He was determined (obsessed) with getting his license even though he could never pass the vision test. Nearly drove me crazy with it. I understood. But you can only hear about it so many times before it drives you nuts, and of course it was somehow my fault. I had to get experts to help convince him it wasn't doable......even then he was furious. Then he wanted the freedoms ect other kids his age had (at this age he couldn't yet be trusted home alone) and it finally came to a head one day when I not so nicely told him if he wanted privileges he had to earn them just as his sisters did, he had to show me he could handle the responsibility that went with those privileges.

    Snitching food I solved for the most part by not buying anything that didn't have to be made from scratch. He was not allowed at that point anywhere near the stove/ that limited his snitching possibilities. When he went to work at 18, if he snitched food he had to replace it. It took about a year, but he stopped snitching it. He learned to ask.

    I was looking into guardianship around this age because it was such a full time job. At 17 he had the maturity at best of a 12 yr old, usually quite younger. The tech school he went to in high school also helped with was an area they actively worked on with the kids along with social skills. It was the first school environment where he was accepted as "just one of the kids" and teachers bent over backward to help all the kids in the classes, had the resources to do so. It's where he got his computer training.

    With difficult child's interest in food/cook books perhaps you have a budding chef in the family. Is there perhaps a trade school in the area that could cater to this interest and build upon it? Finding a way to use Travis' obsession with both computers and sci fi was one of the smarter decisions we ever made. He built from the ground up the super computer in his room and the one I'm using now for a small fraction of what the cost would've been bought retail. (his I don't even think you could buy retail lol ) Might be something worth looking in to.
  8. SomewhereOutThere

    SomewhereOutThere Well-Known Member

    I have guardianship of my Autism Spectrum Disorders (ASD) son because he needs help in certain areas, such as money (he will spend it all if it is not doled out to him and I'm very generous since he is working and he also gets his own SS) and medical decisions and just because he doesn't really know how to make a decision without c hanging his mind 100 times, but I don't know if I'd have done this if he were breaking the law and I'd be held responsible. Look into it. I think all states are slightly different.
  9. susiestar

    susiestar Roll With It

    If you are given guardianship, esp the 'of person' type, then you WILL be liable for any damage that difficult child does. I can easily see the need for guardianship in your situation, and while normally it isn't an issue for most parents, when has 'normally' ever truly applied to our kids?

    I have long thought that there should be a two or three year period starting at age eighteen where if a child has certain problems there are thing in place to help them mature. A time when parents still have guardianship because the child needs a couple more years to be ready for adult life. I haven't worked out all the details in my head, but pretty much a time for them to be 'adults' but still have the figurative training wheels so that if they are headed into major problems or already have major problems, the parents are not so powerless to help.

    So many times an 18 yo has all of the control and none of the sense and/or logic they need to handle their affairs, and it can end up a total mess if the parents are not able/willing to help.

    gsinjane, I think you have missed the reasons this topic is being discussed. Of course at 18 the parent of a normal child is no longer responsible for what the child does, and often it is a sense of moral responsibility rather than legal responsibility that keeps parents on the hook financially. Many of our kids are far from normal and given their problems and the causes of them, parents have to take guardianship or make arrangements for the state to do so because the child/teen/newbie adult simply is not able to cope wtih the world and function like an adult with any degree of success. We are talking about our children who will need caregivers, group homes and many other supports simply to survive in this world.

    I would be very reluctant to take on guardianship if I were you, nerfherder. Up to now, you have had the parental responsibility simply due to difficult child's age. Many kids hate this, and count on the fact that at age 18 they are 'adults' and we cannot force them to do much of anything. Given the issues with your difficult child, I can see problems ahead if you retain guardianship. She is going to resent it in a major way, and at least for a time will act out in whatever ways she thinks will upset you the most or cost you the most money.

    If guardianship goes to the state, and you are able to play a very active part but one that is behind the scenes (reporting problems, etc... to the person/group who act as guardian), your relationship with her will likely be much better. She won't be able to blame you for all her problems, and you can develop a more positive relationship rather than having to stay in the role of "the person who ruins all the fun, and my entire life" which is largely what many teens think the role of a parent is all about, at least that is what many of them will tell you.

    You need to speak with a lawyer and difficult child's doctor. Will the doctor support difficult child's need for a guardian? Who will the state appoint as her guardian if you choose not to be? I do believe, to the best of my knowledge, that if you are her guardian then you could potentially be held responsible for her actions. That isn't a role you want or liability that you want. Around here it is DHS (dept of human services) who ends up as the guardian if a child is orphaned or if an adult is in need of a guardian and the parents are unwilling/unable/unfit to assume those responsibilities. After you speak with an attorney, you may want to set up and appointment with DHS to ask what the process is and how guardianship is handled. You can also work to figure out what role you will play if she is given a guardian through DHS.
  10. JJJ

    JJJ Active Member

    I think you need to speak with an attorney in your state. It seems like most posters have posted about how guardianship works in their state. We are taking guardianship of Eeyore. In my state, I will not be responsible or liable for his actions. I cannot force him to do (or not do) anything. I will control his finances, make most medical decisions, and make all educational decisions. I cannot admit him to a Residential Treatment Center (RTC)/TLP or sterilize him without a court order. He does not have to live with me but I must ensure that he has a place to live and food to eat. He will not be allowed to sign contracts. He will need my consent to get married.

    We did not take guardianship of Kanga because she has no money except SSI and that is controlled by her rep payee. She would continue to ignore us and even with guardianship, there is nothing we could do to control her behavior.
  11. buddy

    buddy New Member

    ARC has financial and guardianship trainings, some online. It's national with state divisions. That may be a great way to get practical questions answered from people who not only are trained but live it.