Legal Guardianship

Legal Guardianship FAQs

An “Incapacitated person” is “An adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs."



1. Ability to make informed judgment as to marriage  YES [X] NO
Kitty has no concept of what to look for in an appropriate spouse, and is very much a victim waiting to happen.  Bear chooses people based on how similar they are to him (like attracting like) and has been engaged several times - luckily his relationships never last long enough to actually get married.
2. Ability to make informed judgment as to voting  YES  NO
I'm not sure I have an opinion on this one!  Seems like they're just as informed as anyone else :^) 
3. Ability to apply for and receive governmental benefits  YES [X] NO
Absolutely not.  Neither one has the ability to fill out forms, and don't seem to know how to even start accessing services.  Bear reads and writes on a 5th or 6th grade level.  Kitty apparently can read and comprehend at a higher level, but writes at a 3rd grade level.
4. Ability to operate a motor vehicle  YES [X] NO
Hell no.
5. Ability to make decisions regarding travel  YES [X] NO
Budgeting, knowing where it is safe to go, getting a hotel room, purchasing tickets, feeling safe on a plane, train or bus...  Apparently Bear can do this.  Kitty never.
6. Ability to seek or retain employment  YES [X] NO
Kitty shows no interest in the actual process.  I don't think she could actually fill out an application independently or handle the stress of a "real" job.  Bear could at least seek and attain employment - he just couldn't RETAIN employment.
7. Ability to contract and incur obligation  YES [X] NO
Neither has an understanding of money or budgeting.  Bear always believes he's going to get and keep a fantastic job that will allow him to pay for contracted services.  When he gets money he is very generous and gives it away easily.  When he doesn't have money he demands others "repay" what he gave them (never agreed to prior BTW!  Kind of like "Indian Giving")
8. Ability to sue or defend lawsuits  YES [X] NO
Both have a concrete, black and white sense of right and wrong.  Neither have the processing ability to understand complex legal documents or concepts.
9. Ability to manage property or to make any gifts or disposition of property  YES [X] NO
Neither has an understanding of money or the value of property.  Bear doesn't understand what is wrong with "Indian Giving."
10. Ability to determine residence  YES [X] NO
Bear obviously cannot maintain relationships with roommates or other people he chooses to live with.  He has chosen known drug dealers as appropriate people to live with.  He cannot afford to live independently and has apparently slept outside and didn't eat when he didn't budget well or couldn't find someone willing to take him in.  Kitty would need to live with someone who could support her and manage her estate - she does not appear to have the judgment to choose appropriately.
11. Ability to consent to medical, dental, psychological, and psychiatric treatment and to the disclosure of those records  YES [X] NO
They can choose to have treatment, but they do not have a good understanding of their diagnoses, would have great difficulty understanding side effects and efficacy of different treatments, and both are in pretty severe denial regarding their health issues.  Both have strong psychosomatic issues and low body awareness (Bear has waited weeks to tell me he's peeing blood, but both would pop Tylenol for minor aches and pains all day if I let them).  When Kitty was tired of being poked and prodded at the beginning of the Summer for some pretty serious health issues, she began refusing treatment and denied she even needed them.  Neither can maintain their medications.
12. Ability to handle a bank account  YES [X] NO
Neither has an understanding of money or budgeting.  Both have serious learning disabilities in math.
13. Ability to make decisions regarding financial obligation  YES [X] NO
See #7, 9 and 12!
14. Ability to enter into insurance contract of every nature  YES [X] NO
See #3 and 7


Getting ready to start the process of legal guardianship for Kitty who is now 17.5 yrs old. Anyone have any advice? We need to do this as inexpensively as possible. A big part of me doesn't want to do it, but she has made it very clear that as soon as she turns 18 she's going to let the IEP team know that she wants out of the special school we worked so hard to get her into, and once she's out, we'll never get her back in (we had to file due process to get her in in the first place). Plus, she wants to be a preschool teacher and the school is wasting her time, trying to give her vocational skills to pursue this unrealistic goal.

She's just starting her junior year of high school. She was hospitalized 6 times during the first semester last school year, before she went into RTC for 4 months. They discharged her from the RTC because she didn't have the cognitive or emotional ability to work the program. She is not ID (intellectually disabled -the new PC term for mentally retarded), but has a low average IQ that drops into the 50s if she is overwhelmed or in a loud, chaotic environment. Emotionally and socially (but not intellectually or developmentally) she is stuck at 6 years of age. She cannot handle the anxiety from trying to be perfect around people who might figure out that she is an unlovable, unworthy, stupid, ugly, crazy mess (her beliefs, not mine).

Her current psychiatrist assures me she will sign any papers we bring her for legal guardianship. I was worried the pdoc wouldn't, since Bear's psychiatrist with the local MHMR program refused to do so for Bear. So this is comforting, but also really sad too.

Hubby and I discussed how long we would keep legal guardianship.  Many years ago my brother-in-law married a 24yo girl whose aunt and uncle had legal guardianship of her.  They gave permission for her to marry and removed legal guardianship.  When my BIL abandoned her and his children, she went back to the Aunt and Uncle.  When we talk about why we would take legal guardianship of Kitty, this is one of our big concerns:

Reasons for getting Legal Guardianship of Kitty as an adult:

• To prevent her from getting control and sabotaging her special school placement
• To continue to have legal input in planning her school transition plan
• To be able to still legally have an input at her IEP meetings in her senior year of high school
• To have input in where she lives senior year and after graduation
• To help her get SSI income and ensure it actually goes for her support and living expenses
• To help her find and keep an appropriate job
• To ensure she continues to get the medical treatments, therapy and medications she needs
• To help her make choices that lead to a healthy lifestyle (nutritious food, hygiene, chores/ clean environment)
• To protect her from inappropriate relationships, particularly with those who would take advantage of her emotional immaturity, and to help her develop the ability to have appropriate relationships.
• To stop her from attempting things she's not ready for and getting hurt and scared... or worse.  Especially from damaging her self-esteem, relationships or becoming suicidal.
• Most of all, to continue to provide the emotional support she needs and will need