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As students move into high school, one of the topics that school districts will discuss with parents is guardianship. This discussion typically takes place in an ARD meeting and occurs during transition planning. A school district must inform the parents and the student of the “transfer of parental rights” concerning the ARD process. This notice should occur twice:
- At least one year before a student reaches age 18, the student’s IEP must include a statement that rights granted a parent, other than the right to receive notice required under IDEA, will transfer to student upon reaching age 18 unless someone has been granted guardianship of the student (TAC § 89.1049 (a)), and
- At the time the student reaches age 18, the school district must notify, in writing, the adult student and parent of the transfer of rights to the student (TAC § 89.1049 (c)). This notice is separate and distinct from the IEP statement noted above.
What this means is that at age 18, a student is considered an adult and all rights are transferred to that student. When a student reaches the age of majority (18), they are regarded as being able to make their own choices. This would include making choices about their education. Since an IEP is a like a contract, it can be enforced in a court. Therefore, an 18 year old student would be responsible for signing and agreeing to the IEP. Parents and students with disabilities must look at all options before deciding if the student is responsible enough for the task.
Note! The transfer of rights occurs regardless of your child’s disability label and/or level of need, unless you have made other legal arrangements.
Before making a decision, families should discuss what supports the student will need now, and in the future. A good way to get started with this may be through the person centered planning process. It is important that families complete this process BEFORE a student’s senior year.
Guardianship is a legal process designed to protect people at risk of abuse, neglect, and exploitation. It removes rights and privileges from a person determined to be “incapacitated” under State law. The process involves the court system and an attorney. Guardianship may be full (whereby all rights and privileges are removed) or may be partial (where some rights are assigned to the person with a disability – like the right to vote, marry, or choose where they live).
Alternatives To Guardianship
Effective September 1, 2018, transition planning for students must address:
1) the use and availability of appropriate opportunities to assist the student in developing decision-making skills, and
2) supports and services that foster the student's independence and self-determination, including a supported decision-making agreement.
For some students with disabilities, guardianship may be the only option. Yet, it is important for parents to know that guardianship is not the ONLY option which will allow them to actively participate in the ARD process after their child turns 18. In addition to guardianship, there are the following options:
- Supported Decision Making
- Durable Power of Attorney
- Durable Power of Attorney over Health Care
- Directive to Physician
- Management of Community Property
- Money Management
- Social Security Representative Payment program
- Trusts
- Consent to Authorize Advocacy -
- Consent to Authorize Advocacy (pdf) – A sample form to use to with schools or other adult agencies to authorize parents participation at ARD meetings; from The Univ. of Montana Rural Institute.
- Consent to Authorize Advocacy (pdf) – Here is another example of a simplified form to use with the school district. It was “notarized” to make it official, but not necessary.
It is important to note that if an alternative is chosen, the student should have an understanding of what the alternative implies; and the parents need to understand that if the adult student states “I don’t want you here” at some point, this could signify a revocation a Power of Attorney situation. Parents should consult an attorney before deciding on any option. Each family (including the student) will need to decide what is best for their child.
Notices under the Individuals with Disabilities Education Act, Part B
A school district shall provide any notice required under IDEA to BOTH the adult student and the parent. This notice doesn’t give the parent the right to consent to or participate in the proposal or refusal to which the notice relates.
For example – A notice of an ARD meeting would be sent to both the student and the parent. This does not constitute invitation to, or create right for parent to attend the meeting. It is important to remember that the members of the IEP team can include “other individuals that have knowledge or specific expertise regarding the child”. This means your adult child can invite you to participate in the meeting without having guardianship. While parents can attend, the students are the ones with decision making power and will be responsible for signing agreement with the IEP, not the parent.
For students whose disabilities make it inappropriate for them to make these types of educational decisions, parents must consider guardianship and the other options available to them to continue making legal decisions for their children.
If guardianship or other options are necessary, it is imperative that parents and students make these decisions and begin any process before the student turns 18. The guardianship process takes a great deal of time and requires the use of an attorney.
Resources:
Disability Rights Texas - Supported Decision Making Resources:
- Supported Decision Making Made Easy
- An Easy-to-Follow Guide on Supported Decision-Making Agreements
- Sample Supported Decision-Making Agreement
- The Right to Make Choices: A Supported Decision-Making Toolkit for People with Disabilities and Their Supporters
Minnesota Department of Human Services – Introduction and Guide to Supported Decision Making (You Tube)
National Resource Center for Supported Decision Making - The NRC-SDM builds on and extends the work of Quality Trust's Jenny Hatch Justice Project. Here you will find user friendly resources, guides, and toolkits to help older adults and people with disabilities exercise their Right to Make Choices, as well as real-life supported decision making stories and videos.
Texas Council for Developmental Disabilities – Guardianship Alternatives
Texas Health & Human Services: Advance Directives – This resource explains the different legal documents that allow individuals to convey their decisions about end-of-life care ahead of time. Options to consider for adults with disabilities may include the Medical Power of Attorney and the Declaration for Mental Health Treatment.
Texas Guardianship Association
The Arc of Texas - Alternatives to Guardianship
The Legal Framework for the Child Centered Process - Adult Students and Transfer of Rights
Transition Coalition – Links to free webcasts and other resources related to Guardianship & Supported Decision Making
Other Articles Worth Reading:
The Center for Self Determination has a number of articles on Guardianship:
- Eliminating the Pervasiveness of Guardianship by Dohn Hoyle
- Re-Thinking Guardianship and Promoting Self Determination by Tom Nerney
- Guardianship and the Disability Rights Movement by Diane Coleman and Tom Nerney
Challenging Incompetence: The Meaning of Self-Determination (pdf) - by Thomas Nerney (2000)