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is very important to look at how <strong>the</strong> determination
of <strong>the</strong> need for guardianship, or a student’s
competency, are made.
Evan’s placement at a segregated school for
students with disabilities and his status as an
individual with a disability undoubtedly contributed
to his being viewed as “incompetent”
and <strong>the</strong>refore in need of guardianship. John
Pitts and Bonnie Potter felt that Evan’s attendance
at Lakewood, a segregated school for
individuals with disabilities, was indicative of
his lack of or level of competence.
If school staff, educated in working with
students with disabilities, feel that placement
in a certain school is enough to determine
competence or need for guardianship, it is
not surprising that o<strong>the</strong>r adults, with less training
in working with students with disabilities,
might draw similar conclusions. Geoff Ryder,
<strong>the</strong> Smiths’ lawyer, also concluded Evan was in
need of guardianship. When asked how he
had determined this, he responded, “Now this
is when we have a special needs child – I rely
more upon <strong>the</strong> parents. That’s because normally
<strong>the</strong>y aren’t going to go to <strong>the</strong> cost and
<strong>the</strong> expense of this unless necessary.” So, if a
parent went to <strong>the</strong> time and expense to request
guardianship for a “special needs” child,
Ryder indicated that he would assume <strong>the</strong>
young adult was incompetent and proceed
with <strong>the</strong> guardianship.
Troublingly, Ryder also noted that in o<strong>the</strong>r
guardianship cases, he may be called upon to
act as a guardian ad litem for an alleged ward.
In this case, he would determine competency
and identify what actions he believed to be in
<strong>the</strong> best interest of <strong>the</strong> alleged ward. In doing
so, he stated that he would contact <strong>the</strong> alleged
ward, meet <strong>the</strong>m, and have a conversation. “A
lot of times,” he said, “<strong>the</strong>y aren’t able to
communicate.” In this statement, he was referring
to an alleged ward’s ability to communicate
in a traditional sense, specifically, orally.
He tied great importance to <strong>the</strong> ability to
communicate orally. In referring to a particular
case, he noted that, even though staff doctors
at a state mental health institution had
labeled a woman incompetent, he, from talking
with her, knew that she “had a certain level
of understanding” and judged her competent.
These assumptions about <strong>the</strong> need for
guardianship or incompetence appeared to
be based on perceptions of disability, <strong>the</strong>
14 / Education and Training in Developmental Disabilities-March 2008
meaning of a school program placement, and
<strong>the</strong> label of “special needs.” No individual
mentioned specific capabilities of Evan or of
o<strong>the</strong>r students. Related to <strong>the</strong>se assumptions
of incompetence is <strong>the</strong> need to protect individuals
viewed in this way.
Paternalism and <strong>the</strong> Related Push for
Guardianship
The Smiths have concerns for Evan, as all
parents might for <strong>the</strong>ir child. They wonder
what he will do when he grows up, when he
will leave <strong>the</strong> house, and if he will be able to
maintain and prosper on his own. Additionally,
<strong>the</strong>re are o<strong>the</strong>r concerns related to Evan’s
perceived ability to care for himself. Connie,
his mom, admits, though, “it’s going to be, I
think, a bigger leap for me” to adjust to his
growing up and leaving <strong>the</strong> house. The
school, though, seems to have used <strong>the</strong>se natural
concerns of parents to strongly encourage
<strong>the</strong> Smiths to obtain guardianship.
When asked why she had pursued guardianship,
Connie cited Lakewood’s emphasis on
acquiring it and <strong>the</strong> importance <strong>the</strong>y had
placed on it. She added that she did have
some fears for Evan. When asked to elaborate,
she said she was concerned he might be
“taken advantage of.” These vague suggestions
of what might occur to a young adult with a
disability, if left without a guardian, were
noted in several o<strong>the</strong>r interviews. Laura Jenson,
Evan’s teacher, stated <strong>the</strong> following in
regards to what she might tell a parent during
an IEP meeting:
A lot of parents ask, “Why would I want to
be my student’s or my child’s guardian?” We
just make suggestions, “If you do want to be
your son’s guardian a good reason would be
so someone couldn’t come along and take
advantage of <strong>the</strong>ir money,” which is a certain
possibility. . .
Along similar lines, Potter, <strong>the</strong> school social
worker, provided some concerns regarding a
student’s ability to protect or care for <strong>the</strong>mselves.
Really, our kids are very gullible and can be
taken advantage of easily and that’s where
we come from with <strong>the</strong> parents. Our kids
can be talked into something very easily.
Unfortunately <strong>the</strong>re are people out <strong>the</strong>re