When I am working with clients who have minor children, or children with special needs, the conversation always includes talk of potential guardians. For minor children the guardian would need to serve until the children turned 18. For children with special needs, depending on their abilities, they might need a guardian for their entire life. Understandably, the parents choosing a guardian for minor children seem to have an easier time. They can picture their children joining another household, and can see an end date to the guardianship.
For parents of children with special needs, the choice does not seem to come so easily. It’s difficult, if not impossible, to try to see that far in the future to anticipate who would be the best person to take on the responsibility of guardian. For parents who have no other children who might serve in that role, it can be even harder. Rather than trying to force the decision, I try to break it into smaller steps.
First, I ask the client “If you were to be in a car accident today, where you were seriously injured and unconscious, where would your child be? Are they at home? At a day program? Living in a community living situation? If they are at home or a day program, who is the person you would want to be able to pick them up and take care of them over the next few days or weeks until you recovered?” This helps narrow the choices down to someone who is nearby and could step in with a couple of hours notice.
Then, I ask the client “if you were going to be unavailable for more than 30 days (the length of time an emergency guardianship in Massachusetts is effective) who would you want to serve as a more permanent guardian?” Again, this is where clients have difficulty deciding. More and more, I have clients who are naming a committee of people (friends, family, care providers) who know their child and can decide together on who the appropriate guardian might be at the time. Remember, at this point, the guardian needs to be approved by the Court. So, the group could get together and work out who they want to nominate as guardian, and then when the petition was filed with the Court, there would already be agreement. This would help in the judge’s decision making and make the process faster.
It isn’t easy to picture your child being around without you, but selecting a guardian, or nominating a group of people to make that choice and then legalizing your decision is part of being a good parent. You know your child best, and your wishes should be documented so they can be honored when you are no longer around to express them.
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