What is a Plenary Guardian?

What is a Plenary Guardian?

If you have a teenage child or young adult child with an intellectual or developmental disability (IDD), you may have concerns over how they will navigate the world as an adult. You may be wondering whether you need to assume legal guardianship to protect them from potentially costly mistakes. It is only sensible to think about whether or not they may need your help in making important life decisions moving forward. That is why it is important to learn more about different types of guardianship. The more you learn about the legal avenues that are available to you, the better you will be able to decide what is best for your child.

What is Plenary Guardianship?

Plenary guardianship is the official legal term for full guardianship. It is the most complete form of guardianship that can be granted by the court — where you take full decision-making responsibility for your child.

Deciding to seek full guardianship for your child is a major choice that should not be made lightly, as it will remove all of your adult child’s legal rights to make major life decisions. The last thing you want to do is lower their quality of life, so you will want to discuss the possibility of plenary guardianship with multiple key figures in your child’s life to ensure you are completely certain about your decision. These figures may include your special needs lawyer, the child’s other parent, your child’s primary physician and other medical experts. Not only will these experts help you decide what your child really needs, they can also help you present a complete argument to the court if you find you need to seek plenary guardianship.

If you do get plenary guardianship from the court, you will take over responsibility for some or all of your child’s major life decisions, including:

  • Voting
  • Driving
  • Marriage
  • Divorce
  • Medical decisions
  • Financial decisions
  • Entering into contracts
  • Living arrangements
  • Creating a will

There are definitely individuals with such a severe IDD that they require plenary guardianship. For those individuals, plenary guardianship is a necessity for their safety and those around them. But it is also important to understand that plenary guardianship is often not necessary. Just because someone has an IDD, even a fairly significant IDD, does not mean that they should have all of their rights taken away and put in the hands of someone else — even someone as well-intentioned as their parent.

Why Do Parents Seek Plenary Guardianship?

The primary reason for plenary guardianship is to ensure the safety of the individual under guardianship. An IDD can be so severe that it can make an individual vulnerable to dangerous decisions and/or being taken advantage of by others. You want your child to live a relatively safe, comfortable, secure life. If you are certain that having full rights to get married, divorced, drive, enter into contracts, make medical decisions, make financial decisions, and so on, is likely to put your adult child in significant danger, it may be necessary to take away those rights.

How to Decide if Plenary Guardianship is Necessary

Seeking plenary guardianship for your adult child with an IDD or soon to be adult child is one of the biggest decisions you will ever make. You love your child and want what is best for them — and that may mean taking over some or all of their decision-making through full guardianship. But how do you decide if plenary guardianship is the right choice?

There is no simple, easy answer to this question. But there are some questions you can ask yourself and other experts like your special needs attorney that can help guide your decision, including:

  • Is your child completely incapable of making health care or financial decisions? Decisions like whether to get a life-saving surgery, take birth control and pay rent are extremely important choices that adults must make for their own well-being. If you do not believe your child is capable of making such decisions, you may feel compelled to take over such decisions to ensure their safety. 
  • Can your child make some major decisions with reasonable — or even extreme — assistance or accommodation? Many young adults with an IDD are capable of making some major decisions, particularly if they have some help from others that they can trust. It is far better to err on the side of caution when it comes to taking away your child’s rights to make their own decisions both for their happiness and your own. 
  • Is there a less extreme legal option you can utilize other than plenary guardianship? Plenary guardianship is considered the most drastic choice because it fully removes the rights of your child and puts them in your hands. There may be other options, like limited guardianship or power of attorney, that would allow you to provide adequate protection without the need to take away all your child’s rights. 

Alternatives to Plenary Guardianship: Limited Guardianship

If after careful consideration you determine that your child is unable to make some decisions safely due to their IDD, but not all, you could seek a limited guardianship. As the name implies, a limited guardianship is granted to address specific limitations the individual with an IDD may face. For example, if you know that your child is not capable of making sound financial decisions but is capable of making other major decisions like driving or choosing a life partner, you could seek a limited guardianship for financial matters. 

Alternatives to Plenary Guardianship: Power of Attorney

A power of attorney is even less restrictive than a limited guardianship. It grants you the power to make specific decisions on behalf of your child, such as health care decisions or financial decisions. You could get a power of attorney to help in the areas where you know you are needed without having to go through the extensive process of getting guardianship. 

Remember — The Court Will Err on the Side of Caution

As you are making your decision about what type of guardianship or legal option you want for your child with an IDD, it is important to keep the priorities of the court in mind. Generally, courts are averse to taking away any more of an individual’s rights than they have to. You are going to have a much harder time convincing a court to give you plenary guardianship than you would limited guardianship. Power of attorney will be easier to get than limited guardianship. 

Of course, if you are absolutely certain that plenary guardianship is necessary and you and your attorney can provide sufficient evidence and a compelling argument, you will likely be granted full guardianship. 

Trust Your Judgment and Don’t Be Afraid to Ask for Help

You know your child better than anyone — which means you are the best-equipped to determine what kind of help they need as they come into adulthood. However, since the question of plenary guardianship is so significant, you should not be afraid to seek help as you make your choice. Your family physician, any specialists your child sees, and your special needs attorney have likely all encountered similar situations with other patients/clients. They can give you some insight that will probably make you feel better about your final decision. They can tell you about examples they have seen of full guardianship, experiences of adults with IDDs, information about the legal hurdles you may face and more. 

In the end, it will be up to you whether you choose to seek plenary guardianship, limited guardianship, power of attorney or some other avenue to protect your adult child with an IDD. But you will likely feel better having consulted with experts before you finalize your decision. 

Getting Help with Guardianship Decisions

For parents of children of with an IDD, the approach of their 18th birthday can bring mixed feelings. On the one hand, you know it is a joyous occasion that your child has reached one of the great milestones of life — as with every new 18-year-old, they gain the right to vote, to marry, to become part of the armed forces and to move out on their own. But the reality of their IDD could give you serious hesitation about leaving them to their own devices. You know better than anyone how capable — or incapable — they may be to make significant life decisions. You want to protect them, and you may need to take legal action to do so.

At Lilac City Law, we understand how difficult it can be to decide questions of guardianship for an adult child with an IDD. We want you to know that you do not have to go through this process alone. We are committed to helping our clients find the best available option for their children and their own wellbeing. We can help you decide if full guardianship is the right choice for your child and we can help you seek guardianship from the court.

If you have questions about plenary guardianship and your other options for protecting your adult child with an IDD, please reach out to us using the contact form below or just give us a call. It is our mission to help you protect your family, and we are ready to assist in whatever way we can. 

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Why You Need to Consider Options for Temporary Guardianship for Your Children

Why You Need to Consider Options for Temporary Guardianship for Your Children

As a parent, the last thing you want to think is not being around for your children.  Not being there to make decisions for them, and not being there to take care of them.

Unfortunately, accidents do happen and if the worst case were to happen to your family, there is little doubt that you would want to make sure someone you trust is around and able to care for your children!  You need to start considering a temporary guardianship for your children.

Three Reasons You Need to Consider Temporary Guardianship

Incapacitation: If you become incapacitated and unable to care for your children, you want to have someone you trust to make decisions for them.

Substitution: If you need to be out of town and away for your children for any reason, you want to have someone there to care for your children.

Emergency:  If there is an emergency that causes you unable to care for your children and there was no time to appoint a permanent guardian, then a temporary guardian will be appointed.   This is also known as an emergency guardian.  If you have not specifically set up a temporary guardian for your children, they could end up temporarily in the care of strangers, or family members that you would not want them with. 

Role of a Temporary Guardian

In a temporary guardianship, the person named:

  • Has legal custody of the child or children
  • Has the right to make any medical decisions for the child or children
  • Has the right to make any educational decisions for the child or children
  • Has the right to make any financial decisions for the child or children
  • Is legally responsible for the child or children

Length of Time a Temporary Guardianship Lasts

A temporary guardianship typically lasts up to 60 days.  State statutes will set the time period if it is a court-ordered guardianship.  The length can vary depending on each case.

If the temporary guardianship is set up in a document such as a living will or through a power of attorney, then it will last for the amount of time outlined in the document.  The amount of time should be reasonable and realistic in case of any changes.

A temporary guardianship only lasts until its purpose is fulfilled.  For example, if you appoint a temporary guardian for your children while you are on a business trip, then when you return, the temporary guardianship will end.

How to Arrange a Temporary Guardianship

There are a few ways to arrange a temporary guardianship for your children.  Each one depends on the reason you need to set one up.

  • Living Will or Power of Attorney: If you are setting up a temporary guardianship to become effective if you become incapacitated or deceased, you want to name the guardian in your living will or on your power of attorney form. This person will be the guardian of your children until you are no longer incapacitated or until a permanent guardian is named.  You may also put a period for which you want a temporary guardianship in place.
  • While you are out of town: If you need to set up temporary guardianship because you will be out of the state or country, you can name a guardian to care for your children in your absence. This can be done simply by writing a guardianship letter or filling out a guardianship form.  In the letter you want to be sure to include the name of the guardian, the reason they are the guardian, the dates the temporary guardianship is in effect, and what decisions the guardian is allowed to make for your children.

Rember to chose someone you trust.  This person will be making important decisions for your children when you cannot.  Choosing a guardian is an important decision and you need to discuss the responsibilities with whomever you choose.


Talk to us Today about a Temporary Guardianship

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