THE BLOG
04/10/2014 01:02 pm ET | Updated Jun 10, 2014

What You Should Know Before Requesting a Third Party to be Named Guardian of Your Adult Child

A very sad article appeared on the Times Online recently entitled, "Who Knows Best? Dispute over disabled man's care magnifies guardianship's complexities." (Read it in full here.) The article recounts the story of Nancy Pantoni and her ongoing legal battle with the guardian of her adult, special needs son, Dominic.

The article's claims seem shocking. According to the article, Dominic's current guardian, the nonprofit Jewish Family & Children's Services of Pittsburgh, refuses to allow Dominic's mother to speak with him on the phone or to visit him more than one hour every month. She is not informed of his medical condition or even of his hospitalizations.

According to the article,

"She [Nancy Pantoni] said she feels decisions made by the guardian have been detrimental. 'His health has significantly deteriorated so much that I'm concerned for his life,' she said. 'I'm on a mission to save my son's life, I really am. I'll do anything.' "

Why was the nonprofit, and not Nancy Pantoni herself, appointed guardian of Dominic? The article explains that when it first became necessary for Dominic to move into a residential care facility paid for by the state, no openings were immediately available. Ms. Pantoni was apparently advised that a nonprofit agency might be able to get Dominic into a home faster than Ms. Pantoni herself could -- but only if that agency was appointed Dominic's guardian. (As a side note, this seems like speculation and I do not know if it is accurate. However, it is true that wait time for openings in residential facilities can be long, depending on one's locale.)

The nonprofit agency was then appointed Dominic's guardian. The agency did, in fact, find placement for Dominic in a group home. The agency has continued to serve as Dominic's guardian.

What is Nancy Pantoni's present goal? "'Ideally, I would like to be his guardian,' she said, 'and if that's not possible, at least have a guardian who will cooperate and honor family choices.' "

As an attorney who specializes in guardianship matters and elder law, I would like to give context to some of the issues raised in the article.

1. When should one seek guardianship of their adult, developmentally-disabled child?

When children hit maturity, they become legally responsible for their own financial and health care decisions. If parents feel that their child is not capable of making those decisions responsibly due to a disability, parents or any party interested in the child's welfare, can seek to have a guardian appointed.

A hearing is held in which a judge may appoint a guardian over the (adult) child.

2. What happens at the guardianship hearing?

Essentially, a guardianship hearing is a fact-finding mission by a judge. Specifically, the judge wants to see evidence that will prove: (a) whether the child, in fact, has a developmental delay that impedes his/her ability to make appropriate financial and health care decisions, and, if so, (b) which individual or organization is best suited to make those decisions for the adult child.

Often, parents will request to be appointed their child's guardian. Sometimes, though, due to extenuating circumstances, parents may request that a different individual or organization be appointed instead. Perhaps the parents simply feel that they cannot handle such a huge responsibility.

Sometimes, a judge may determine that the parents are not best suited to make their child's financial or health care decisions even though the parents want to.

3. What are the obligations and responsibilities of a guardian?

A guardian makes all of the individual's financial and health care decisions to the same extent that one is legally permitted to make those decisions for oneself (or for one's minor child). Additionally, a guardian has a fiduciary duty to the individual; that is, a duty of loyalty and an obligation to act only in the best interests of that individual.

Once, I was a guardian for an elderly woman. The woman, sadly, had a stroke and was transferred to the hospital in critical condition. The hospital staff turned to me and asked: Would I sign a DNR/DNI (Do Not Resuscitate/Intubate) form?

My ward had a grown son. He wanted me to sign the DNR/DNI. My ward also had a sister, and she did not want me to sign the DNR/DNI. However, neither the son's nor the sister's wishes were relevant. The only relevant issue was, What would my ward have wanted?

Similarly, if Dominic's guardian feels that it (the agency) is making medical decisions that serve Dominic's best interests, the guardian is not required to include Dominic's family in those decisions. A guardian might include family members in such decisions, but only to the extent that family members can assist the guardian in determining what the best interests of the ward actually are.

The same thing would apply to limiting the family's visits and phone conversations. Normally, one would think that more family interaction can only be good for a disabled individual. However, if the guardian feels that such interactions are harmful to Dominic, the guardian must act in Dominic's best interest -- and limit the interactions.

Of course, it is altogether possible that there are other reasons -- and not Dominic's best interests -- that are motivating the guardian, and that is what Dominic's mother must now demonstrate to the court. Unfortunately, though, as the article pointed out, such allegations are quite difficult to prove.

It is heartbreaking that Nancy Pantoni was apparently unaware of the possible ramifications of giving up the right to serve as guardian of her son. Contesting an adult child's guardianship is a whole lot messier for a parent than asking a court to be named your child's guardian in the first place.