[1]In understanding Guardianship, and the Legal Options associated with protecting the rights of a person with developmental disabilities, we are defining the following terms in the hope that it may bring more understanding and clarity.
Tip: Before your child’s 18th birthday certain precautions need to taken. It is important to understand that upon turning 18 years old, your child for some purposes will be considered an adult. As an adult your child will be expected to make decisions on his or her behalf. Will your child be qualified to do so? If not,
you may want to consider establishing guardianship or one of the other options listed below.
Advance Directive – a document that expresses a person’s desires concerning any aspect of his or her health care, or a written form directing an anatomical donation after death is considered as an advance or pre-need directive. As the term indicates, this option is written in advance of the need and the person must be competent at the time he signs the directive. Some people write them when they are diagnosed with a life-threatening illness. Examples of these directives include:
Durable Power of Attorney – Legally competent adults who are disabled but who are capable of giving informed consent may give durable power of attorney to another adult. This legal document gives the designated person the legal authority to make decisions on specific matters for the person who is disabled. A Durable power of attorney can be exercised until the death of the person who gave it, even if the person becomes incapacitated.
Living Will – a written document that directs the providing, withholding, or withdrawal of life-prolonging medical procedures if you are unable to make your own decisions and you have a terminal illness or are in a persistent vegetative state.
Health Care Surrogate – a written document naming another person as your representative to make medical decisions for you if you are unable to make them yourself. You can include instructions about any treatment you want or do not want, similar to a living will. You can also designate an alternative surrogate. If you designate a health care surrogate and alternate be sure to ask them if they agree to take this responsibility, discuss how you would like matters handled, and give them a copy of the document. It is important that any advance directive be witnessed by at least two individuals.
Client Advocate – allows the Support Planning Committee of the Agency for Persons with Disabilities to appoint a family member or friend of the individual to become an official client advocate when the need for this is recognized. Client advocates may assume a variety of roles depending on the needs and wishes of each individual client. They may serve as guides and advisors in developing the support plan, identifying appropriate services, considering the costs of those services, or help the individual with any decisions related to services to be provided through the Agency for Persons with Disabilities. However, they have no legislative authority.
Co-signer of Bank Accounts – This is a way to exercise some degree of control over decision-making in expenditures by requiring more than one signature on the check. It is an effective way to teach as well as supervise the individual and can prevent financial exploitation by others. Provisions should be made for the money in the account to be accessed if any of the signatories should die.
Representative Payee – An individual may be given authority by the Social Security Administration to receive and manage Social Security [2] (SSA) or Supplemental Security (SSI) [3] benefits for another person found unable to manage his own money. The representative payee receives the benefit payment and spends the funds to meet the needs of the individual. The representative payee is required to account annually for expenditures made on behalf of the person for whom the money is intended.
If none of these alternatives are adequate for your family member, then you may need to consider some level of guardianship.
Guardianship – When a court appoints a person as a guardian, the person is then called his “ward”. Remember that you should only take away those rights that the person cannot handle. The statutes require that even when a right has been taken from the individual and given to a guardian or guardian advocate, the guardian is still required, to the extent possible, to consult their state statutes.
It can be an expensive procedure and requires costly evaluations by professionals who may not be experienced or appropriate to evaluate persons with developmental disabilities.
The types of guardianship are:
Full (Plenary) Guardianship – A person is appointed by the court to exercise all delegable legal rights and powers of the person who has a disability. Full (plenary) guardianship is necessary for very few people. It removes all rights relating to both person and property. It requires that there first be an adjudication of the person as totally incapable of handling any personal decisions, money or property. After this adjudication of incapacity another hearing is held to appoint the guardian to make all decisions for the ward.
Limited Guardianship – The court adjudicates the individual incapacitated in specific areas due to the fact that he lacks the capacity to do some but not all of the tasks necessary to care for his person or property. After the adjudicatory hearing, another hearing is held and a guardian is then authorized to handle only those rights and powers that the court finds the person incapable of handling.
Emergency Temporary Guardianship – In emergency situations a guardian may be appointed for the person and/or property of an alleged incapacitated person prior to the appointment of a full guardian. This is done after a petition for incapacity has been filed when there appears to be imminent danger to the person. (e.g. there is no one to make a critical medical decision that must be made immediately.)
Voluntary Guardianship – If the court determines that the individual is not incapacitated, but the individual files a voluntary petition for guardianship, the court may appoint a guardian or co-guardians of the property of a person who, though otherwise mentally competent, is unable to manage property. A voluntary guardianship may be terminated by the ward.
Standby Guardianship – Guardians ordinarily wish to have a hand in deciding who shall take over when they die rather than have the court choose. Standbys may operate as guardian for 20 days after the death or incapacity of the guardian, at which time they must have the court, confirm their appointment. The court may appoint a standby guardian with the same petitioning procedures and at the same hearing as required for the basic guardianship. It is helpful to also have this information included in the guardian’s will.
Source: APD Agency for Persons with Disabilities
Helpful Articles
- Guardianship: A Basic Understanding for Parents [4]
- “Instruction Manual” for Your Child with Special Needs [5]
- Common Mistakes Parents Make with Their Special Needs Trusts [6]
- Tax Planning for Parents of Children with Autism [7]
- Able Account or Special Needs Trust: How to Decide? [8]
- Special Needs Planning: What is a Special Needs Trust? [9]
- Special Needs (or Supplemental Needs) Trusts 101 [10]
- Able Accounts and Taxes: What Special Needs Families Need to Know [11]
- ABLE Accounts: 10 Things You Should Know [12]
- An Affordable Proposal for Guardianship: The Special Needs Tax Credit Bill [13]
- Handling Your Child’s Diagnosis: Six Things Parents Should Do For Themselves [14]
- A Special Need Planning Timeline: 9 Steps to a Sound Family Plan [15]
- Plan Early for Your Child’s Long-Term Security [16]