Presumption of Incompetence

Abstract

This article describes the potential impact that state guardianship laws may have on the transition planning process for students identified with intellectual and developmental disabilities under the Individuals with Disabilities in Education Improvement Act. The authors utilize a disability studies framework to describe how the goals of transition planning under the IDEIA -which promote autonomy and independenceappear to be in direct conflict with the goal of guardianship laws -which is to remove from young adults all or some decision making authority over their own lives. The appointment of guardians for students at the age of majority necessarily limits opportunities for students to develop decision making skills, just at the time in their lives when they should be supported by teachers and school staff to become self-determined adults. The presumption of competency as an underlying approach to all students with disabilities is discussed, and which, if used, will assist teachers, family members, and students themselves in better preparing for and successfully meeting the goals of the IDEIA. The authors suggest that parents, families and educational professionals need to be made aware of alternatives to guardianship that position the student at the center of the decision-making process in order to ensure that the goals of the IDEIA are realized for each student.

Age of Majority and Alternatives to Guardianship: A Necessary Amendment to the Individuals with Disabilities Education Improvement Act of 2004

“…This is a natural fit with the transition planning requirements, as this further enhances a focus on skills and supports needed to be successful during the movement from school to adult life. Although previous articles strongly suggest that families and school professionals should be made aware of alternatives to guardianship (Millar, 2007; Payne-Christiansen & Sitlington, 2008; Rood et al, 2015), this article argues for a legislative and policy-driven solution to address the lack of information and training available to professionals and families during this critical time.…”

Informed consent with people judged incapable of legally consenting

“…Guardianship is a legal term referring to protection of a person, whereas conservatorship refers to the protection of a person's assets and may be plenary (full) or partial (limited) (Arciniegas et al, 2013;National Council on Disability [NCD], 2018; Wilbur et al, 2001). In most situations involving a petition for guardianship, proceedings were initiated because of a specific triggering event or critical incident, which includes but is not limited to physical health crises, acute mental health symptoms or financial/housing challenges (Rood et al, 2014;Wilbur et al, 2001). Guardianship processes are generally categorized as front-end or back-end processes (Wood and Douglass, 2021).…”

“…People with ID/DD are often erroneously perceived to be "perpetual children" who should remain at the status of minors even after reaching their majority and are not given the opportunity to pursue independence (National Council on Disability [NCD], 2018). Studies show that parents are sometimes introduced to this idea through their ID/DD child's school during meetings to decide their individualized education program meeting by faculty and other educational specialist who lack knowledge about guardianship and its legal implications (Rood et al, 2014). Menon et al (2010) proposed a definition of traumatic brain injury (TBI) as follows: "an alteration in brain function, or other evidence of brain pathology, caused by an external force" (p. 1638).…”

Siblings of adults with intellectual and developmental disabilities: Their knowledge and perspectives on guardianship and its alternatives

“…Presumably, these planning tools and other resources are underutilized as schools and disability agencies often provide information only about guardianship (Jameson et al, 2015). For example, many states' education departments have checklists for schools to discuss guardianship with families (Rood, Kanter, & Causton, 2014).…”

“…For example, as many schools encourage special education teachers to provide guardianship information to families (Rood et al, 2014), future studies could explore the extent that teacher training programs prepare teachers on the range of decision-making options.…”