Guardianship is a legal relationship created when an individual is named in a will or assigned by the court to take care of minor children or adults who have been declared incompetent. Guardian rights vary by state and sometimes by county. A guardian may be able to give consent for routine medical care and minor surgical procedures, but not for end-of-life decisions such as DNR (Do Not Resuscitate). It is therefore important that all members of the health care team, caregivers and family members understand the guardianship status of the child. In addition, children with chronic illnesses may have custody issues to consider:
- They may be in foster care or institutionalized
- Their parents may be unmarried or divorced
- The parent(s) may be minors
- One parent may have custody
- Custody may be shared
- Family members other than the parents may be the primary caregivers
At age 18, individuals are their own guardians, regardless of their mental or physical ability to assess and make decisions that affect their own financial and / or health care needs. If the disability interferes with the ability to make decisions, the caregiver may need to obtain guardianship, but this cannot be done until the child actually turns 18.
The person with the disability can choose a guardian or grant power of attorney. Power of attorney is a voluntary and reversible decision that can be "general," covering all financial and medical issues, or "limited," covering certain areas such as financial management alone.
When a person with a disability is unable or unwilling to choose a guardian or grant power of attorney, the court may declare the person incompetent and a guardian will be appointed. This procedure requires a medical and psychological evaluation. The probate court and an attorney with expertise in this area can provide guidance with the process.