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Should I get a guardianship over my 26 year old son with Autism?

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starlight1364

New member
I am the mother of a 26 year old man who has Level 1 Autism, and I have decided to pursue getting a legal guardianship over my son. (We live in New York State, by the way). I have decided to pursue getting a guardianship over my son because his Autism prevents him from understanding the consequences of his actions, and thus impairs his ability to behave and make choices in a responsible manner. I am not just saying this based on my own feelings, I am saying this because it is evidenced by the very concerning behaviors that my son has exhibited these past six years.

One example of this is an incident that occurred back in 2019 when my son was 19 years old. My son had violently threatened and attacked a boy and his family on Facebook because he had made fun of him in middle school. He sent death threats to the boy and his family, and he narrowly avoided getting arrested and sent to jail. It was this incident that prompted my son’s doctor at that time (who has now retired due to having Long COVID) to have him taken to a psychiatrist so that he could be given an evaluation. This psychiatrist is the one who formally diagnosed our son with Autism (Level 1).

Even worse than that is my son’s refusal to take care of his Diabetes. My son has a genetic form of Diabetes called MODY (Maturity Onset Diabetes of the Young) type 3, and at first it could be managed simply by taking pills, but now it has progressed to the point where he needs to take insulin to manage his blood sugars. My son, however, consistently refuses to take the insulin prescribed to him, and he also refuses to adhere to any dietary restrictions to keep his blood sugars under control. His diabetes is therefore completely uncontrolled, and he refuses to do anything about it.
Another concerning behavior my son has exhibited is his consistent failure to keep up with his academics. My son actually got kicked out of Stony Brook University because he repeatedly chose to goof off instead of doing the school work he was supposed to do. He then had to finish his undergraduate degree at an online college, but even there he frequently chose to fool around instead of doing his work. Thus, it took him three years after getting kicked out of SBU to finish his bachelor’s degree (in history) at this online college, meaning it took him seven years just to finish a bachelor’s in history.

Perhaps most concerning of all is an incident which occurred last year at an elementary school. My son (who was 25 at this time) had gone over to a public elementary school to play on the swings. He went to the school after the school day had ended, but what he didn’t realize was that the school was still open past its usual time because it was parent teacher conference night. He then walked around the school looking into the windows, and that was when school staff saw him and panicked. He was told he couldn’t be there, so he left, and then when he got to the parking lot, the principal of the school came out after him. He told the principal he had just come to play on the swings, and then the principal shouted at him, took a picture of his license plate. When my son opened his mouth to ask him why he did that, the principal cut him off and sharply demanded that he leave in a harsh and punishing tone. My son was very upset about the way he was treated, but he doesn’t understand how his behaviors looked to others, and that they made him look like a child predator. This was why the staff panicked, and this was why the principal dealt with him in such a harsh way.

As if that wasn’t bad enough, my son started sending messages to the principal and staff at the school, telling them that he just wanted to play on the swings, and asking them not to call the police. It got to the point where the school had to send security guards to our house to tell my son to stop.

After that, I called the school, and I apologized to them about my son’s behavior. I explained to them that he has Autism, and that it prevents from understanding the consequences of his actions, and therefore prevents him from behaving in an appropriate manner. The lady who I spoke to on the phone was very kind and understanding, and she wished me luck, since being the mother of an autistic son is not for the faint of heart.
This last incident is what made me realize that my son is not capable of functioning as a responsible adult because of his Autism, and that is why I have decided to pursue a legal guardianship over him, because this is what I know he needs. I’d really appreciate some advice.
 


Taxing Matters

Overtaxed Member
I understand your concerns and sympathize with how difficult it has been to see your son struggle with his autism and health problems. It's hard for a any parent of an adult child with struggles to know what's possible to do and what's best to do for a child in that situation.

Your desire to seek guardianship to have more control to help him is natural. It is, however, not easy to do. He's an adult with all the rights and responsibilities of an adult, including the right to reject medical treatment, the right to live as he chooses, including how he decides to care for himself, etc. Having a mental condition or significant health problems that he's not treating does not by itself mean he loses his rights to do those things.

The first thing to understand about guardianship of an adult in NY (and other states as well) is that guardianship is considered the last resort for addressing the problems that the alleged impaired person (AIP) has. That's because guardianship effectively takes away many of the rights of the AIP and is the most restrictive action that can be taken against the AIP. If the needs of the AIP may be met by something less restrictive then the court may not impose a guardianship; instead that less restrictive option must be used instead. The standard for imposing guardianship over an adult in New State is set by state statute and refined by NY state court decisions.

The statute for guardianship in NY State is NY Mental Hygiene law (NY Ment Hygiene L) § 81.02. Paragraphs (a) and (b) provide the standard the court is to apply:


(a) The court may appoint a guardian for a person if the court
determines:

1. that the appointment is necessary to provide for the personal needs
of that person, including food, clothing, shelter, health care, or
safety and/or to manage the property and financial affairs of that
person; and

2. that the person agrees to the appointment, or that the person is
incapacitated as defined in subdivision (b) of this section. In deciding
whether the appointment is necessary, the court shall consider the
report of the court evaluator, as required in paragraph five of
subdivision (c) of section 81.09 of this article, and the sufficiency
and reliability of available resources, as defined in subdivision (e) of
section 81.03 of this article, to provide for personal needs or property
management without the appointment of a guardian. Any guardian appointed
under this article shall be granted only those powers which are
necessary to provide for personal needs and/or property management of
the incapacitated person in such a manner as appropriate to the
individual and which shall constitute the least restrictive form of
intervention, as defined in subdivision (d) of section 81.03 of this
article.

(b) The determination of incapacity shall be based on clear and
convincing evidence and shall consist of a determination that a person
is likely to suffer harm because:

1. the person is unable to provide for personal needs and/or property
management; and

2. the person cannot adequately understand and appreciate the nature
and consequences of such inability.

Note that the AIP must be represented by an attorney to protect his legal interests and a guardian ad litem (GAL) may be appointed as well to make decisions about what is in the AIP's best interests and advocate for that. Note that the court needs to take into account the wishes of the AIP, too. In particular, if a guardian is to be appointed, the AIP has a say regarding who should be appointed. It is not automatic that the person's parents would be the persons granted guardianship.

The NY Courts have a guardianship guide that has some useful details about what guardianship entails. There is also a more comprehensive guardianship handbook prepared for the state. It's 20 years old so it's a bit dated but much of the information in it is still good.

You'll want to consult a NY family law attorney about your situation and whether guardianship is possible, what the odds of success may be, and how much it will cost you. These can be long, drawn out, and expensive court battles if your son is strongly opposed to it.
 

not2cleverRed

Obvious Observer
I am the mother of a 26 year old man who has Level 1 Autism, and I have decided to pursue getting a legal guardianship over my son.

Level 1 on the spectrum might not be enough to justify guardianship.

Your son has a high enough IQ that he was able to get into SUNY Stony Brook. Spend some time with someone who is Level II or III, with an IQ of 65, and you'll see the difference.

Don't get me wrong, I do sympathize. However, although your son is on the spectrum, he is high functioning enough that what you want won't be possible if he resists. And he is cognitively capable of resisting.

I think that your son should be reevaluated by a different health care professional.
 

Zigner

Senior Member, Non-Attorney
Level 1 on the spectrum might not be enough to justify guardianship.

Your son has a high enough IQ that he was able to get into SUNY Stony Brook. Spend some time with someone who is Level II or III, with an IQ of 65, and you'll see the difference.

Don't get me wrong, I do sympathize. However, although your son is on the spectrum, he is high functioning enough that what you want won't be possible if he resists. And he is cognitively capable of resisting.

I think that your son should be reevaluated by a different health care professional.
Also, even with a guardianship, mom won't be able to force son to go to school (well, not participate in school).
 

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