Transition planning is an ongoing process and community services and resources should be explored first as the least restrictive option for youth who will require supportive assistance when transitioning from care.

However, if guardianship/conservatorship may be the best plan for the youth then a referral should be made to the Division of Legal Services (DLS) to staff the case for legal advice. The legal advice DLS provides is confidential to the Children’s Division.

Communication with DLS should begin one year in advance to allow review of the supporting documentation, preparation and filing of legal documents and obtaining a hearing date as matters of guardianship/conservatorship are determined through a court hearing.

Evidence must be submitted on the youth’s current mental and physical status and current ability to care for him/her without assistance in order for a determination to be made. The burden of proof is on the person who is seeking to have a guardian/conservator appointed for the respondent, to prove the respondent is totally or partially incapacitated or totally or partially disabled. Therefore, it is essential the medical/professional evaluation meets the requirements of incapacitation.  Guardianship or conservatorships involve time, expense, and continuing court supervision. 

The guardianship referral and assessment information should be sent to DLS no later than 6 months prior to the youth’s anticipated transition from foster care.

The following items regarding the youth must be provided to the Division of Legal Services: 

• DLS Case Referral form
• Documents
  • Copy of the original Jurisdictional Order;
  • Copy of the most recent court order retaining youth in custody;
  • Current (within the last six months) evaluation/report from physical and mental health medical professionals evaluating the physical and psychological ability of youth to care for himself/herself. Including a statement of the current diagnosis and prognosis;
  • Medical records from all medical professionals;
  • Vocational needs assessment. Vocational Rehabilitation Services may be able to assist with this in some situations;
  • A report/assessment by DMH and/or DHSS of eligibility and services available;
  • Educational needs assessment and records including Individualized Education Plan (IEP), current education level, abilities and needs;
  • Report of any other special needs;
  • Report from child’s Children’s Service Worker of why youth requires a guardianship.
• Assets and/or necessities:
  • List of youth’s current medications;
  • The sources and amounts of any income available to the youth, including any funds such as SSI payments, OASDI, trust accounts, employment, etc.
  • The estimated value of the youth’s real and personal property (furniture, clothing, DVD’s, CD’s, computer, TV, etc.).
    • The county in which the property of the youth, or a major part thereof, is located.
  • Parties and/or witnesses:
    • The names and addresses of child’s parents and any other adult relatives involved in child’s life including siblings or grandparents. Adult in this instance means anyone 18 years;
    • The name and address of the current placement;
    • The length of time youth has been in current placement;
    • The name of the child’s Children’s Service Worker who works with the youth on a day-to-day basis.

There may be additional information DLS will need depending upon the facts of a particular case. The DLS attorney assigned to the case will let the child’s Children’s Service Worker know if additional information is needed. It is imperative all information needed to file a guardianship/conservatorship petition is sent to DLS in a timely manner or DLS will not pursue a guardianship/conservatorship.

A clear aftercare plan is needed in order for youth to transition from care into a guardianship or conservatorship successfully after the age of 21. As jurisdiction of the juvenile court and Children’s Division terminate on the youth’s 21^st birthday, planning must begin well in advance of the date of the youth’s 21^st birthday or the date the guardianship is needed to go into effect. 

Related Practice Alerts and Memos:

2-10-20 – CD20-11 – Independent Living Arrangements

5-28-20 – CD20-17 – Housing Services and Coordinated Entry System