Down Syndrome Awareness Month: Everything You Need to Know About Guardianship for Special Needs Adults

October is Down Syndrome Awareness Month. For parents and caregivers who are raising a child with Down syndrome or other special needs, it is important to start thinking about what happens when your child becomes an adult. Fortunately, many adults with Down syndrome are able to live full, meaningful lives and, with some support, they are quite capable of making good choices for themselves.

Depending on the long-term needs of your child, however, you may want to consider a guardianship. The good news is that because a guardianship in Oregon must “encourage the development of maximum self-reliance and independence of the protected person,” it can be a mutually beneficial arrangement for you and your child.

What is a Guardianship?

Guardianship is the formal process by which a court appoints another person to act on behalf of someone who is incapacitated, meaning that the person is unable to make decisions about his or her own health and safety. Oregon guardianship law defines incapacitated as:

A condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s health and safety.

“Meeting the essential requirements for health and safety” means:

Those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur.

If your loved one does not meet this strict definition, then guardianship is not an option. Fortunately, there are many support resources for families of loved ones with Down syndrome, both locally and nationally.

How Do I Become a Guardian For a Special Needs Adult?

If your child does meet the definition of incapacitated, you may be able to establish a guardianship. Under Oregon law, guardianships must encourage maximum independence and self-reliance for the person. The scope of the guardianship will be limited “to the extent necessitated by the person’s actual mental and physical limitations.” In other words, in appointing a guardian, the court will seek the least restrictive arrangement available based on the person’s needs.

Only a court can appoint a guardian. In addition to showing that your loved one is incapacitated, as defined by Oregon law, you will also have to demonstrate that a guardian is necessary to oversee the care and supervision of the person and that the guardian is qualified, suitable, and willing to serve.

Your child must be notified if you are seeking to be appointed guardian, and he or she will have the opportunity to object and to request a hearing. The court will also send an independent investigator (called a court visitor) to meet with the protected person to verify whether or not a guardian is needed and to evaluate the suitability of the proposed guardian.

After the court visitor submits a report, and a hearing is held (if requested), the court will rule on the petition. Remember that the guardianship judgment will be tailored to meet your child’s actual mental and physical limitations so that the scope of the guardianship is the least restrictive possible.

What Can a Guardian Do?

A guardian has several essential duties:

• To act only in the best interest of the person you are chosen to help (referred to as the “protected person”);
• To manage the protected person’s money or property carefully, if you are in charge of making financial decisions;
• To keep the protected person’s money and property separate from your money and property; and
• To keep good records about the protected person’s money or property and your decisions.

As a guardian, you will be required to file a report with the court once a year describing, among other things, how the protected person is doing, how the guardianship powers have been used during the year, and whether or not the guardianship should be continued.

How Will a Guardianship Affect My Child’s Rights?

Under Oregon law, a protected person keeps “all legal and civil rights provided by law except those that have been expressly limited by court order or specifically granted to the guardian by the court.” This includes rights to:

• Vote
• Marry
• Obtain Counsel
• Seek termination of guardianship
• Receive notices concerning any aspect of the guardianship proceeding

Bottom line, a successful guardianship will maximize your loved one’s independence, self-reliance, and dignity, while providing whatever support and assistance is necessary for him or her to thrive.

How We Can Help

This Down Syndrome Awareness Month and beyond, if you need assistance becoming a guardian for a special needs adult, we welcome you to contact Litowich Law. Based in Salem, we serve clients throughout Oregon and are dedicated to helping to protect you and your loved ones now and for the future.