A. The voluntary placement of a child in an institution for individuals with intellectual disabilities by the child's parents shall not, by itself, abrogate the rights and authority of the parents.
B. 1. Except as otherwise provided in this paragraph, no later than January 1, 1988, all residents of the institutions specified in Section 1406 of this title and all residents of other residential facilities for individuals with intellectual disabilities operated by the Department of Human Services who are eighteen (18) years of age or older shall have a guardian appointed by a court. A guardian shall not be required for a resident of the institution eighteen (18) years of age or older for whom a guardian is not recommended as provided in subsection C of this section or who has not been found to be incompetent or incapacitated by the court.
2. The guardian shall be the parent of the resident or a relative or other adult person appointed by a court to be the guardian of the resident or former resident. A parent whose parental rights have not been terminated by a court, and who is otherwise qualified to serve as guardian, shall have first priority for appointment as guardian. If a parent is not available or willing to serve, a relative who is otherwise qualified to serve as guardian shall have next priority for appointment as guardian.
3. The guardian shall not be the superintendent or other employee of the institution or residential facility in which the person resides or an employee of the Department of Human Services, except where the superintendent or employee is also the parent or relative of the resident or former resident. A superintendent may serve as guardian ad litem as provided in subsection D of this section.
C. 1. An assessment of the competency of a resident of an institution or residential facility for individuals with intellectual disabilities operated by the Department shall be completed within six (6) months:
2. The assessment shall be made by a panel composed of the resident's social worker, the attending physician of the resident, and a licensed psychiatrist or licensed psychologist with training and experience in the area of intellectual and developmental disabilities. The panel shall make a recommendation to the superintendent as to whether or not the condition of the resident is such that appointment of a guardian is warranted. Upon the finding by the panel that appointment of a guardian is warranted, the superintendent shall initiate guardianship proceedings.
D. If the parents or other relative of the resident are unable to serve as guardian or cannot be located, the Department may in a guardianship proceeding request the court to appoint a guardian ad litem until such time as a guardian is appointed by a court. If the court is satisfied, after inquiry into the matter, that a parent or other relative qualified and willing to serve as guardian cannot with due diligence be located, the court may appoint a guardian ad litem.
1. The court may appoint as guardian ad litem:
In all cases, a qualified relative or other qualified adult shall have priority over the Department of Human Services for appointment as a guardian.
2. The appointment of a guardian ad litem shall be as guardian ad litem of the person only of the resident, and the court shall set forth in its appointment order the specific powers and duties of the guardian ad litem. The guardian ad litem shall not change the place of residence of the resident unless authorized by the court.
3. The guardian ad litem may serve without bond.
E. The Department of Human Services may provide assistance to residents and former residents of the institutions named in Section 1406 of this title as necessary to assure compliance with the requirements of subsection B of this section, including filing a petition to have a guardian of the person appointed for the resident.
F. The superintendent of the institution shall have the custody of any resident during the time the resident remains in the institution and shall be responsible for the care, treatment, and education of the resident during the time the resident remains in the institution.
Added by Laws 1963, c. 37, § 11, eff. July 1, 1963. Renumbered from § 311 of Title 56 by Laws 1982, c. 312, § 48, emerg. eff. May 28, 1982. Amended by Laws 1983, c. 128, § 4, operative July 1, 1983; Laws 1987, c. 195, § 1, emerg. eff. June 30, 1987; Laws 2019, c. 475, § 6, eff. Nov. 1, 2019.