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Supported Decision-Making and Guardianship
June 2025
The transition to adult life for teens with disabilities can be complicated. There are changes to healthcare providers, finishing high school, enrolling in new support programs, and finding new ways to connect with the community. There are also important legal considerations.
Legal Changes
A person legally becomes an adult at age 18 and is assumed to be able to manage their own finances, consent to medical treatment, vote, sign contracts, marry and exercise their own legal rights. These changes at age 18 are not different because a person has a diagnosis or a disability.
Supported Decision-Making
Legal options to guardianship have expanded in our state over the last decade. Those ages 18 and older and their families now have the option of using a Supported Decision-Making (SDM) Agreement. This legal tool allows the adult to be the “decider,” but names supporters for all or some parts of their life where they’d like support with the decision-making process. For example, they may assign a parent to support them in healthcare decisions and assign another relative to assist them in financial matters (banking, cell phone or rental contracts, etc.) Unlike guardianship, the SDM Agreement can be modified at any time and does not require going to court or hiring an attorney. The SDM Agreement allows the adult with disabilities to keep their legal rights.
Wisconsin law now requires less restrictive alternatives be considered before pursuing adult guardianship. Wisconsin Statute § 54.10(3)(a)4. explains that a court may appoint a guardian only if it finds by clear and convincing evidence that the individual’s needs for assistance in decision making or communication are unable to be met effectively and less restrictively through other means. (Guardianship Support Center, Oct 2018)
Combining Legal Tools
Many families find that, in addition to SDM Agreements, other legal tools can support their soon-to-be adult. Signing a Release of Information (ROI) form at the doctor’s office, the school and the bank allows parents or caregivers access to records and participation in meetings to support their adult with disabilities as they navigate the decision-making process. For those receiving Supplemental Security Income (SSI), a parent or other caregiver can be designated as the Representative Payee. In addition, families can use a Power of Attorney (POA) for Health Care and/or POA for Finance, in addition to other legal tools. These forms are called Advanced Directives and do not require the approval of a judge or help of an attorney to put into place.
(From WI BPDD Supported Decision-Making Toolkit: wi-bpdd.org/index.php/supporteddecision-making/)
Guardianship
Families may find guardianship to be the best choice if their young adult’s intellectual or developmental disability globally impacts their ability to understand and communicate information. It is important to know that guardianship is not based on the quality of the decisions the person makes, but on the process they use to make and communicate decisions.
Before a judge grants guardianship, the “ward” (person under guardianship) must be determined incapacitated. The court uses the information they receive from the person’s medical providers (physicians or psychologists). Sometimes, this step in the process can be especially emotional for families.
Definition of Incapacity
A central issue for the court is the impact of the person’s impairment on the person’s functional ability to make decisions that are important to their health and safety. The court must decide if the person has the capacity to make these decisions. It has defined incapacity as, “an inability to effectively receive and evaluate information or to make or communicate a decision with respect to the exercise of a right or power.”
The Guardianship Process
To be appointed guardian to a young adult with disabilities, families must submit a request to their county circuit court. The youth’s medical provider also needs to complete an Examining Physician or Psychologist Report. Families then must complete a Petition for Temporary or Permanent Guardianship. While families often hire an attorney to help with the guardianship process, it is not required.
Guardianship Myths
Our children may not make the same decisions as we would. (Many young adults don’t!) Guardianship is generally not awarded to keep a young person safe or to keep them from making what the family feels could be unwise financial or health decisions, or to prevent risky behavior. It is also not true that guardianship can easily be changed or removed when the person gets older. Proving that someone who was once deemed incapacitated or incompetent by a court is now competent is not easy.
Low-Cost Legal Help
For families whose children have providers at Wisconsin Children’s Hospital, and meet income eligibility requirements, free support is available through their Guardianship Clinic (414) 266-3465. If your family needs other assistance or an attorney recommendation, contact your Children’s Resource Center.
What is Best for My Child?
It is important for families to educate themselves and consider less restrictive options before looking at guardianship. Guardianship is not a decision that needs to be made at age 18, so there is no urgency. Attend learning opportunities, like the Family Voices’ Thinking about Supported Decision-Making sessions, and take time to review the BPDD’s Supported Decision Making website which includes videos, a recorded webinar and handouts. Talk with your child about these new legal changes and get their input. Lastly, connect with other families who have gone through the process to learn about their experiences.
Learn More about Guardianship
Guardianship Support Center Resources offers general resources and assistance on the guardianship process. Note they do not offer legal advice.
Family Voices of Wisconsin, 2025© | familyvoiceswi.org