News & Views - Jun,
1995 Issue #34
LOSING CONTROL? MAYBE NOT!
By: DENISE M. WOODBURY, Attorney at Law
Bonners Ferry, Idaho
(The author has been involved in the establishment of several guardianships in the state
of Idaho for young people approaching their 18th birthday. She emphasizes it is vital that the Court and the attorneys involved understand
the nature of emotional growth/special purpose schools and programs, and the nature of the students enrolled in them. The following
sharing of her experience comes from a perspective that what a child WANTS is not necessarily what a child NEEDS. - LON)
Guardianship is a Court created method of caring for a person who lacks the capacity or
understanding to make or communicate responsible decisions concerning his or her person. Traditionally guardianships have been used
to assist the elderly when they are unable to handle their personal and financial affairs.
Recently, Guardianships have been used in a new way to continue children in an emotional
growth/special purpose school when they reach the age of majority. The problem arises when a child turns 18 before completing a program.
Leaving a program before successful completion can be devastating to a child who is still a child in an adult's body and who still
needs to work through his or her issues.
A guardianship is brought in the state where the child resides. If a child is in a program
outside the state where his parents reside, the parents will need to bring the action in the state where the child is. The specific
statutes will need to be checked in such state.
A guardianship is commenced by filing a petition in the local court system requesting appointment
as guardian. This petition is made by the person who desires to be appointed as guardian. In most cases that person is one or both
of the parents. The proposed guardian must allege that the child is an "Incapacitated Person" in some manner. There may exist statutory
grounds to establish this. In Idaho, those grounds include "any person who is impaired by reason of mental illness, mental deficiency,
physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he
lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person."
Children who are placed in emotional growth/special purpose programs usually have some basis
for being there, whether it follows suicide attempts, running away, using drugs as a control of their lives, or having some type of
mental disability that blocks making safe decisions.
Because liberty is a constitutional right in this country, it is important that due process
be given a child in a guardianship proceeding. Thus, not only will the proposed guardian have an attorney, but one will also need
to be provided for the child. It is very important that an attorney who is familiar with emotional growth/special purpose programs
be used. The reason is most of these children are very good at manipulation. If an attorney is not familiar with the program, he/she
is liable to take the child's words at face value and erroneously conclude the child is ready to make safe and responsible decisions.
In Idaho, the attorney who represents the child is also appointed as a "Visitor," to interview
the child to obtain the child's views and get a history of the problems from the child's perspective, visit the place it is proposed
the child will be residing, interview the proposed guardian, and prepare a report for the court. The report will often contain conflicting
views, as the child's perceptions will be addressed by the proposed guardians in the report. It is possible the attorney will prepare
a report recommending guardianship and still have to represent the child in objecting to the proceedings in Court. Having done a complete
evaluation to prepare the report, the child's attorney will be aware of the evidence supporting the guardianship. After the report
is completed, the child is given a copy. By using an attorney familiar with the program, the report can frequently convince the child
to "stipulate" or agree to the guardianship.
Another tool in obtaining a guardianship appointment is to have a professional who works
with children in a program evaluate the child as to the child's mental history and attitudes. This should be an outside professional--not
an employee of the program. The local statute will generally designate requirements. Records of prior professionals should be made
available for the evaluation. A history of the child from the program is also useful to the professional in making his or her evaluation.
The term of the guardianship is up to the court. Generally a guardianship can be structured
so that it remains in effect until the child completes the program (or a similar program), or has a termination date of the child's
proposed graduation. Thus, the parents are not tied in to keeping the child in one program if another will work better for the child.
Prior to appointment of a guardian, if an emergency exists, a temporary guardian can be
appointed. This is generally used where a child would turn 18 prior to the time the Court hears the petition.
A guardianship grants to the guardian those powers and responsibilities a parent would have
for a minor child. In effect, it is a court order extending custody beyond the child's majority. The main goal of the guardianship
proceedings is to develop a self-sufficient adult, capable of making responsible decisions.
Even though laws may come from a uniform code, they may vary from state to state. It is
important to have at least two local attorneys familiar with the specifics of the guardianship law and the program involved in any
proposed guardianship proceeding--one for the parents and one for the child. Failure to do so can result in a guardianship being denied.
Copyright © 1995, Woodbury Reports, Inc. (This article may be reproduced
without prior approval if the copyright notice and proper publication and author attribution accompanies the copy.)