When your child turns 18, you no longer have the right to make legal decisions for them. You can’t even sign their IEP or give consent for medical procedures. This can be a shock if your child has an intellectual disability and will not be able to take care of their own life choices as an adult.
If this is the case, you should consider guardianship. Being a guardian is a legal status that gives you the right to make decisions for your adult child. But first, think carefully about what your child may be able to do if they have support from a caring team of family and friends. Read about alternatives to guardianship, and decision-making support for young adults with disabilities.
It’s always best that your adult child keep as much of their legal rights as possible. Involve them in this process as much as they are able to understand. Encourage their independence and ability to act on personal choices whenever possible. If you’re sure your child will need you to get legal permission to make at least some decisions for them, then read on. We’ll tell you step-by-step how to apply for guardianship for a child with disabilities.
What if I’m not from Massachusetts?
If you are from another state, the process will be very similar. It will help to read through this article and learn about preparing the paperwork and filing it in court. Then contact your local Family Court in your state and ask them about the process. Some of the terms may be used differently in different states.
Here are the steps for how to apply for guardianship of a child with disabilities
- Learn the basics of guardianship and make initial decisions
- Prepare the paperwork
- File the paperwork
- Respond to the Citation – deliver the paperwork to your child’s care team
- Attend the Court Hearing
- Share the Letter of Appointment
- File the Guardian’s Care Plan Report
Step 1: Learn the basics of guardianship and make initial decisions
Decide what kind of guardianship your child needs
There are a few types of guardianship:
- Limited Guardianship: specifies certain decisions your child can still make themselves
- Full Guardianship: lets you make all decisions
- Conservatorship: lets you make financial decisions only
Conservatorship protects a person’s money and property. It’s only necessary if you’re not getting full guardianship and your child has significant assets to manage (money, property, or other things of value). The process is very similar to guardianship. See Conservatorship forms and instructions.
Before you start the process, think carefully about what decisions your child may be able to make on their own. Then you (and your child, if possible) can decide which option is best.
Decide who the guardian should be
In most cases one or more parents will be their adult child’s guardian. Your family must decide this together. If a parent, relative, or friend can’t serve as guardian, the Court can assign one.
We write this article as if you will be the guardian for your (adult) child, but the steps apply to whoever is applying.
Guardians have specific legal responsibilities. You should understand them before you choose a guardian and start the process.
- Make sure your child is getting all the care and services they need
- Give consent for medical care and decisions
- Sign legal documents
- Keep all records (legal, medical, financial, etc.)
- Send annual reports to the Court
Protection and advocacy:
- Ensure safety, shelter, food, clothing, and access to medical care
- Protect their rights. If there are concerns that your child’s rights have been violated, report the concern to their social service agency, case manager, or the Disabled Persons Protection Commission at 1-800-426-9009
- Make sure your child is getting all possible public benefits. These may include case management, day or residential programs, transportation, and a housing subsidy. You may need to apply for funding from the Department of Developmental Services (DDS) or Department of Mental Health (DMH), or hire an advocate or benefits manager. Read about social services for adults with disabilities.
As a guardian, you are NOT required to:
- Provide hands-on care
- Have your adult child live with you
- Be financially responsible for your child
Approving medical treatment:
- As guardian, you will sign consent for medical procedures, diagnostic testing, and other health needs
- You should have access to your child’s medical records, and be familiar with their medical history, diagnoses, treatment, and medicines
- A guardian does NOT need to use their own money to support the person
- Guardians sign financial forms like leases or loans on behalf of your adult child
- Guardians have a right to charge for their services. Usually, parents or close family members who are guardians choose not to. Professional guardians may charge an hourly rate, based on their experience and the type of tasks they do. This may require court approval
As a guardian, you must keep any paperwork related to your child’s legal, medical, or financial matters.
- Legal records: Copies of court paperwork, including the guardianship appointment
- Medical records: Reports from medical exams, lab reports, consent forms, medicine information, insurance paperwork
- Financial records: Bank account statements, tax returns
- Personal records: Individualized Education Program (IEP) and progress notes, Individual Service Plan (ISP), birth certificate, social security card
The guardian must file reports with the Court, and give copies of the report to your child and any others who are listed on the petition.
- Within 60 days of being appointed, you must file a Care Plan Report. This describes the plan for your child’s care and includes information like your child’s overall status, living situation, finances, and a summary of your contact with them
- Every year, you must file an Annual Report. This is the same as the Care Plan
Step 2: Prepare the paperwork
The next step is to prepare a few specific forms, which you will file in Probate and Family Court. (This may have a different name in your state. Find your local Family Court in your state.)
- The Petition is a formal document asking for guardianship and describing any specific conditions you want to have on record
- The Medical Certificate and Clinical Team Report are filled out by professionals to confirm that your child does not have the capacity to make their own decisions
- The Bond Form, which promises you will meet your responsibilities as guardian
Do I need a lawyer?
Not necessarily, although many families hire one, or get advice filling out the forms. If you have questions, you can usually get help from your child’s social service agencies or from the Probate and Family Court. If your child’s disability makes it very clear that they need a guardian, you probably won’t need a lawyer. (For example, if your child cannot express their thoughts or opinions in any way, even with alternative communication methods.) But if it’s not clear and you will have to advocate to make your case, it will help to have a lawyer. Here’s how to find free or low-cost legal advice.
The court will assign a lawyer to represent your child’s interests. They want to make sure that no one is taking advantage of your child’s disability. If you’re a parent asking for guardianship over your child, this is mostly a formality.
Petition for Guardianship of an Incapacitated Person
The Petition for Guardianship is your formal request to ask for your child to have a guardian. Here, you fill out information about you and your child, explain why they can’t make their own decisions, and ask for yourself (or someone else) to be the guardian.
Terms in the form:
- Petitioner: you, or whoever is filling this out
- Respondent: your child, or whoever needs a guardian
- Nominee: the proposed guardian (usually you–the parent)
- Co-guardian: a second guardian (usually the other parent if there are two)
In section #5 on the form, you must check if your child needs a Limited or General (Full) guardian.
- If you check Limited, you need to explain which kinds of decision-making you want the guardian to have. For examples, see Limitations to Guardianship
- If you check General (Full), you need to explain why limited powers are not enough. The court prefers to give your family member as much independence as possible
Proof that your child needs a guardian
The next step is to get a report filled out and signed by professionals to explain why your child cannot make their own decisions. (They call it being “incapacitated”. Not a nice word, but you will see it used.)
- If your child’s inability to make decisions is because of a medical condition (including mental illness), use the Medical Certificate
- If it’s because of an intellectual disability, use the Clinical Team Report
You only have to fill out one of these reports! It will be the Clinical Team Report for most families of children or young adults with disabilities.
The Medical Certificate confirms that your child has a medical condition that makes them unable to make their own decisions. It must be signed by one of these medical professionals:
- Licensed Psychologist
- Certified Psychiatric Nurse Clinical Specialist
You will need to schedule TWO exams and get TWO Medical Certificates:
- One dated within 30 days of filing the Petition, and
- One dated within 30 days of the Court hearing
You will not know the Court hearing date until AFTER you have filed the Petition. It may be several months away, which is why you need another medical certificate to show that they still have the medical needs that make guardianship necessary.
Here’s what to do:
- Download a PDF of the Medical Certificate. You can print it or email it to the clinician who will evaluate your child
- Schedule an exam for your child with a doctor, psychologist, OR psychiatric nurse specialist. Usually this is free, but check in advance
- Have them fill out the Medical Certificate and sign it (Share these instructions if needed)
- Make sure the first exam is within 30 days of when the Petition will be filed
- Once you know the date of your Court hearing, follow up with your clinician (the doctor, psychologist, or nurse specialist) to have them complete a second Medical Certificate, dated within 30 days of the Court hearing
Clinical Team Report
The Clinical Team Report confirms that your child has an intellectual disability that impedes their decision-making. (You don’t need this if your child has a different reason for not being able to make their own decisions, but that’s rare.) It must be signed by each of these professionals:
- Licensed Psychologist
- Licensed Social Worker
Each of them must have experience in evaluating a person with an intellectual disability.
Here’s what to do:
- Download a PDF copy of the Clinical Team Report form
- Arrange for each of the 3 professionals to meet separately with your child and fill out the form (Share these instructions if needed)
- You must file the Petition within 180 days (6 months) after they examine your child
If your child will be unable to attend the Court hearing because of their disability, have the doctor or clinical professionals write that on the form.
If you are the proposed guardian, you will need to fill out a Bond Form. This is a pledge that you will fulfill your duties and not take advantage of your authority. This is a sensitive business. People who need guardians are vulnerable. So the Court requires this paperwork to make sure they are protected, even if the guardian is a parent.
You will need to check a box stating that the Bond is one of these:
- Without sureties
- With personal sureties, or
- With the support of a corporate surety Bond
Usually if you or another family member is the guardian, you can check without sureties. Surety is a person or insurance company that will protect your child’s resources. If the guardian steals money or property, or causes harm to the person in their care, this acts as insurance so the person will not lose their money.
Step 3: File the paperwork
The next step is to file all the forms in your county Probate and Family Court. (This may have a different name in your state. Find your local Family Court in your state.) You will bring the forms into the Court in person, and the clerk will make sure everything is filled out correctly.
If you are getting legal advice, ask a lawyer to check your paperwork.
File these forms at the same time:
- The Petition
- The Bond form
- The Clinical Team Report (or Medical Certificate)
In some cases, the Court may appoint a lawyer for your child to represent their needs. You will not have to pay for this.
Step 4: Respond to the Citation – deliver the paperwork to your child’s care team
Once you file the paperwork, the Court will send you a legal notice called the Citation, and a date for the Court hearing. If you cannot make the date, call the Court and work with them to reschedule.
The Citation will tell you who you need to notify about your guardianship request.
This usually includes:
- Your adult child
- Their other parent(s) and siblings
- The Department of Developmental Services (DDS), if your family member is getting services from them
- Other people or organizations, as needed. They will be listed in the Citation
Here’s what you can do:
- Read the instructions in the Citation very carefully
- Have someone who is not the proposed guardian or a relative hand-deliver a copy of the Citation and the Petition to your child. This can be a teacher, close friend, or neighbor who is not legally related to your child (On the form they call this a disinterested person)
- Whoever delivers these papers must sign the Return of Service form that came with the Citation. This confirms that they gave your child the papers
- Mail or hand-deliver copies of the Citation and the Petition to all other people mentioned in the Citation (This is called serving them)
- You or your lawyer (if you have one) should fill out the Return of Service form, listing everyone you served.Then sign the form. This confirms that you followed the Court’s order
- Mail or bring in the original Return of Service form to the Court that sent it to you. (This cannot be a copy!) This confirms that everyone who needs to be notified has been
- If you mail it, use the Court address listed on the Citation
- If you prefer to file it in person, bring it to the Court address listed on the Citation and give it to the Clerk
Once they have the Return of Service form, the Court will schedule the Hearing.
Step 5: Attend the Court Hearing
After you file the paperwork, and get the citation, the next step is the Hearing. A Guardianship Hearing is a formal process. You will go to the court-room and the judge will ask you questions about the documents you have filed.
Each Probate Court and each judge may have a different way of doing things. If you have any questions, you can always ask the Court staff or the judge’s clerk.
Your adult child should come to the Court hearing with you, unless their disability would make that hard for them. (If that’s the case, have the doctors or professionals who filled out the forms write that in.)
What happens at a Guardianship Hearing?
- It will start out with witnesses being sworn in. The Hearing will be recorded
- You (or your lawyer) will explain why you are asking for guardianship. You will need to present the medical evidence that supports why your child needs a guardian. Your child will have their own lawyer too, who is appointed by the Court. Your child’s lawyer will accept or oppose your proposed guardianship
- The judge may ask questions to both sides
- Then, the judge will make a decision. They will either:
- Accept your request for guardianship
- Deny your request, or
- Authorize guardianship, but with changes to your proposal. The changes are usually to give your child more decision-making power in certain areas
Step 6: Share the Letter of Appointment
When the guardianship is approved, the judge signs a decree. After that, there are just a few other thinks you need to do. Ask the Court staff for a certified copy of the Letter of Appointment. (This should be free.) This states who the legal guardian is. Keep it for your records.
Send copies of the Letter of Appointment to these people for their records:
- Your child’s primary care doctor
- Their other specialists (including dentist)
- Their school or community-based service providers
Step 7: File the Guardian’s Care Plan Report
If you are the guardian, you will have to fill out a Care Plan Report. This describes your adult child’s living arrangements and services, your contact with them, etc.
You must fill it out within 2 months of the Hearing (the Initial 60 day Care Plan Report), and then again every year (the Annual Report).
- Download a PDF copy of the Guardian’s Care Plan Report
- Check the box for Initial 60-Day Care Plan and fill out the form
- Give a copy of the completed form to your child by hand or certified mail (Ask for a return receipt if it’s by certified mail)
- Complete the last section, called Certificate of Services. This tells the Court that you delivered a copy to your family member
- Make a copy for your records
- File the Care Plan Report with the Court that appointed you to be the guardian. Do this within 60 days of the hearing
- Mark your calendar for when this form is due again next year as the Annual Report. The Court will not send a reminder
This is a long process, we get it! But if you follow these steps for how to apply for guardianship of a child with disabilities, you can do it! Our advice is to start with plenty of time before your child’s 18th birthday: 6-12 months ahead. Keep track of all the timing between getting the reports and filing the paperwork. Make sure all the people get their copies of the paperwork. Once you’re finished you can rest easy, knowing that you will be able to take care of your child’s life decisions and help them on their best life course.
- Caring for a child with severe disabilities: What you need to know
- What happens when a child with a disability turns 18?
- Transition to adulthood
- Massachusetts Instructions and Forms for Guardianship of an Adult (Do not use the Guardianship of Minor forms. Those are for when a non-parent guardian is appointed for a child under 18)