Independence + Security Balance: Balancing Independence with Security Guardianship and Its Alternatives
In most states, there’s a presumption that individuals over the age of 18 are legally competent, regardless of any disabilities they may have. If no action is taken beforehand, parents may find themselves seriously hampered in their efforts to advocate for family members who are unable to make certain decisions on their own. These parents may lose access to medical records, be excluded from IEP (Individualized Education Plan) meetings or be unable to manage government benefits. But instead of panicking, families should view this important birthday as a planning opportunity and begin discussing its implications about six months ahead of time.
The process may trigger conflicting emotions—pride in a child’s progress alongside strong protective instincts. But after careful consideration, many families are able to balance self-advocacy and person-centered planning with the need to ensure the individual’s physical and financial well-being.
The basic question is whether to apply for guardianship or less restrictive legal alternatives.
A Question of Capacity
The first stage of the planning process should be an assessment of the individual’s overall “capacity.” This concept is difficult to interpret and continues to baffle judges and legal scholars. Although most states have legal definitions of capacity, they also conduct a careful evaluation of facts and circumstances. While the law strives to protect those unable to understand, it permits all individuals, regardless of ability, to make poor choices. It considers comprehension, not judgment. In determining an individual’s capacity, parents should identify the areas where assistance may be necessary, then to put in place the least restrictive legal protections possible. There are various options, which may vary considerably by state. Common tools include joint accounts, trusts, powers of attorney, health care directives, guardianships and conservatorships.
Powers of Attorney and Health Care Directives
If person has legal capacity to understand documents such as powers of attorney (POA) or health care directives, those tools may be all he or she needs. A POA is a legal document through which an individual may authorize another to act on his or her behalf. A health care directive is a type of POA that’s limited to medical decisions and also includes an individual’s specific wishes regarding certain medical procedures. POAs can be tailored to cover a wide range of financial, health and educational issues. They may be ideal for permitting someone to assist a person who only needs assistance with certain decisions or activities. For instance, I have worked with a person who has a traumatic brain injury and is now incapable of doing math or finances, but remains a talented technical editor. She has given her family members power of attorney to help manage her finances. Others may be able to work and pay bills, but need help with medical decisions or taking medications.
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