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.
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.
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.
A guardian has several essential duties:
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.
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:
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.
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.