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Guardianship and Transfer of Rights in Special Education

What is the Transfer of Rights?

  • In the of North Dakota the law considers persons to be adults when they reach their 18th birthday; that is, they are of "legal age". This means they are no longer under the natural guardianship, or custody and supervision, of their parents. It also means that persons who are 18 years old are responsible for making their own decisions, including those about school.
  • The IDEA (Individuals with Disabilities Education Improvement Act 2004) states that students must be told about the decisions and choices to become their own educational guardian no later than one year before they reach the "age of majority" or legal age.
  • If you are receiving special education services in school, a team of people has been planning your education each year (the IEP process). This team includes you, your parents, teachers, and others. Your parents, have been guaranteed certain rights that affect your education. Some of these include rights to be told about what the school wants to do, to look at your school records, and to be involved in planning your education. When you become 18 years of age, these rights transfer from your parents to you. You are the decision maker about your education.
  • It is important that you know about the choices you will have when you are 18. However, you need time before then to think about what you need and prefer, to talk with your parents, and to plan for the best decisions. Therefore, at the IEP meeting during the year you become 17 years of age, the school people on your team must tell you and your parents about the choices. Whoever is the guardian will make education decisions until you complete high school.

What is Guardianship?

  • Guardianship is intended to assist individuals who need guidance in making decisions in major life areas - educational decisions, where to live, employment, money and finances, legal issues, and medical concerns. Guardianship can be limited to education decisions, or it can include more than one major life area.
  • Guardianship is a legal process, and the decision is made by a judge. If you and your parents decide that a guardian is needed to make educational decisions after you are age 18, your parents need to contact an attorney. The attorney will begin the process by filing guardianship papers in court.
  • Usually the parents request to be guardians. However, any adult who is capable and willing to have the responsibility may be a guardian.
  • You and your guardian will continue to be involved in IEP meetings. The guardian will make educational decisions as part of the team.

What does this mean for you?

You can decide to become your own educational guardian. This means:

  • You will receive formal written notice of your IEP meetings and will need to attend all meetings regarding your education;
  • You have the right to include (or not include) your parents in the IEP meeting(s);
  • You, rather than your parents or guardians, will receive your progress reports;
  • You have the right to review your educational records; and,
  • You have the right to request mediation, file a complaint, or ask for a due process hearing if you disagree with decisions regarding your education.

Or, you may decide that your parents, or another adult, should continue to be your guardian(s) after you have turned 18, and have primary responsibility to make educational decisions on your behalf. If so, you need to do the following:

  • Share the decision with your IEP team;
  • Have your parents contact an attorney to begin the process of filing guardianship papers in court where a judge will decide guardianship; and,
  • You must continue to be involved in your IEP meetings. Your parent(s) as your guardians will also attend and assist you in making educational decisions based on the IEP team process.

Transfer of Rights pdf icon

For more information, please contact your special education case
manager or the local special education unit office in your area.

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North Dakota Department of Public Instruction
Kirsten Baesler, State Superintendent
600 E. Boulevard Avenue, Dept. 201
Bismarck, North Dakota 58505-0440
701/328-2260

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