Ethical imperatives, the importance of self-determination, and evidence-based practices in transition direct special education professionals to ensure students with disabilities receive support that prepares them to exercise their rights as they approach adulthood. The Individuals with Disabilities Education Act (IDEA) includes mandates that address the process of transferring educational decision-making authority to students as they approach the age of majority. There is evidence, however, that indicates there are challenges with implementing such mandates as the use of surrogate decision-making mechanisms, such as guardianship, continue to be favored over less restrictive alternatives. This chapter outlines information for professionals seeking to support students as they approach the age of majority and encourages the use of strengths-based approaches, rather than approaches that center student deficits and IDEA compliance. This chapter emphasizes the importance of utilizing less restrictive alternatives to guardianship that promote student autonomy and self-determination.
TopIntroduction
As you have explored this text, you will have encountered many illustrations of unintentional harm caused by professional practices that explicitly or inexplicitly fixate on the deficits of students with disabilities. In a cruel twist of irony, this harm is often caused by professionals with the best of intentions and within systems that are designed to maximize positive outcomes for the students they intend to support. To explore this disconnect between the intent of special education services and the impact such services have on students with disabilities, this chapter will examine the overall process of transition in special education as it relates to students approaching the age of majority.
The pages that follow detail the intersection of special education and age of majority for students with disabilities and the ways in which a deficits- or compliance-focused practice, may contribute to undue or overbroad guardianship. It is intended to be a primer on the topic, not as an exhaustive description of this issue. As such, this chapter focuses on the role of special education professionals with the understanding that responsibility for the meaningful support of students is shared with adult agencies, families, and the community at large. Moreover, the context for that support may differ from state to state and from community to community. The recommendations offered alongside the issues discussed herein are not intended to be “one size fits all.” This chapter is not about offering prescriptive or standardized solutions for professionals or the students they serve; to do so would deny the reality of a field that, at its core, depends on individualization (Yell, 2017).
Learning Objectives
- •
Describe the basic function of guardianship for adults with disabilities
- •
Identify the overlap of mandates related to age of majority and secondary transition within the Individuals with Disabilities Education Act (IDEA)
- •
Critically examine how systems of special education may contribute to undue or overbroad guardianship for the students they support
- •
Detail ways in which a strengths-based approach to age of majority may contribute to adult students with disabilities utilizing less restrictive mechanisms for decision-making support
What Is Guardianship In The United States?
In the United States, guardianship is a probate court directed support mechanism for adults that have been deemed to not have the capacity to make or communicate adult decisions responsibly (Salzman, 2010). State probate laws vary but generally provide authority to the courts to determine if and to what extent a person is “incapacitated” or “incompetent.” Should a court find a person unable to make or communicate responsible adult decisions, they are charged with appointing a guardian to act on that person’s behalf (Burke, 2016; Glen, 2014). The incapacitated person, known as the ward in the eyes of the court, is dependent on their guardian to act in good faith on their behalf (National Council on Disability, 2018).
The scope of a guardian’s authority depends on the extent to which the court finds a person to be incapacitated. The degree of a guardianship order may be either partial or full, also known as plenary. In partial guardianships, courts dictate specific areas of responsibility in which the guardian is to act on behalf of the ward (Millar, 2003; National Council on Disability, 2018; Salzman, 2010). For example, a partial guardianship may be ordered in which a guardian is solely responsible for handling the medical affairs of their ward. Under plenary guardianship, which has historically been far more common than partial guardianship, the guardian has, more or less, full authority1. Plenary guardianships have been observed to make up the majority of guardianship orders for young adults with intellectual and developmental disabilities (Millar & Renzaglia, 2002), and may comprise as much as 87% of guardianships on the whole (Lisi, Burns, & Lussenden, 1994).