Guardianship And Conservatorship Of Development Delayed Individual
Usually this process begins when a child is about 17 or 17 ½. A guardian is appointed to allow an individual to help someone else with their daily functions, where they live, who they hang out with, and also to help make medical decisions. A conservator is appointed to be able to help them out in making their financial decisions. In order to determine whether someone is developmentally delayed, the Idaho statutes indicate this is anyone with a diagnosis of mental retardation (usually an IQ below 76), cerebral palsy, epilepsy, autism, or other closely related condition. The individuals must also have substantial functional limitation in 3 major life areas. The major life areas the statutes list are personal hygiene and self-care, receptive and expressive language, learning capability, mobility, self-direction, capacity for independent living and economic self-sufficiency. These need to be of a lifelong duration and must have showed up before the child was 22 years old.
Typically the way we find out if an individual qualifies as development delayed is there is usually a psychological evaluation or SIBR test done. If they have not been done, we ask the client to get a recent one. The court usually likes to have an evaluation within the last year or two in order to determine they are developmentally delayed. If they are development delayed and they need help in those major life areas, then parents can be appointed as guardians and conservators.
The process involves filing a petition with the Court. We take some information, usually over the phone, as to who is going to be the guardians and conservators as well as who is to be protected. From that information we draft a petition. We have you come in and meet with us and sign the petition as well as acknowledge that you are willing to act as guardians and conservators.
In the state of Idaho, the statutes allow co-guardians and co-conservators to be appointed. So typically it’s a Mom and a Dad being appointed for their development delayed child. It can be just one individual if that is what works out best and you can have an alternate if the regular guardians are unable to do it. Once a petition has been filed, the proposed guardians need to do a criminal background check. This is handled with a criminal history unit and basically it just gives the court what charges have or have not been charged with in the past. It is not a clearance and if you’ve had other criminal background checks done for work or other reasons those will not qualify in court. The court needs to have a criminal background check for the guardianship for development delayed. If you are getting certified family home qualification at the same time, then the state allows you to fill out two separate applications. One for guardianship, one for a certified family home and then schedule 1 appointment to do the fingerprints. You do two separate fingerprints, one for the guardianship, one for the certified family home, but you only pay one fee which is a $65 fee at this time.
Once you’ve done the criminal background check it takes about 4 weeks to come back. The information will go to the evaluation committee which is a committee appointed by the state. It is made up of a physician, a social worker and a clinical psychologist. The evaluation committee will call you to set up a time for you and your development delayed child to come in and meet with you. After the meeting they will write a report to the court as to whether they feel a guardianship and/or a conservatorship is appropriate. Once we get the report we set up a hearing about 4 weeks later. During that time you meet with the attorney that is appointed to represent the development delayed individual. The attorney will meet with the proposed guardian as well as the development delayed child and write a report to the court.
During this time you also need to complete an online training for guardians and conservators. Typically this usually takes about an hour and a half each. If you want to be co-guardians and you want to take that class together, just be sure to input both of your names when you go to take that class so it will show up to the court that you both took it.
Once we’ve got those reports back from the evaluation committee, the report from the attorney, you’ve taken the criminal background checks, and done the online courses, we set up a court hearing. Unless there is opposition, they are usually very short court hearings where the court just wants to ensure that you understand your role and duties as a guardian.
At the hearing, the court will give you paperwork for the annual reporting you have to do. As guardian you have to do an initial 30 day report and then an annual report after that. As a conservator you have to do an initial 90 day inventory of what the assets of the development delayed individual has and then annually you also need to do a report to the court. There is a small fee with each of these reports, however the court will waive these fees because they base it upon the wages of the development delayed child, not of the guardians, and usually someone who is development delayed does not have a lot of assets.
We also talk with families about their will and estate plan at this time. If a parent has a development delayed child and they are leaving any property or money to that child, we discuss with them about creating a special needs trust. This will allow any money the child inherits to go into a special needs trust that has a trustee who can use that money to help the development delayed child above and beyond what the state is already paying. This is necessary so that the child is not kicked off the state benefits he/she is receiving. You can designate in your will or trust who will get the assets remaining in the trust after the developmentally delayed child dies, which is typically your other children or other family members. If a special needs trust is not set up in your will or trust, there is a procedure after your death where the courts can do set up a special needs trust, however any assets left at the death of the child would first be used to pay any expenses the state has made for your child.
If you have any questions with regards to guardianship and/or conservatorship of a development delayed individual, feel free to give me a call and we can discuss the various options that you have. Thank you.
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