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.
POAs don’t deprive individuals of the right to act on their own behalf; they simply establish an additional decision-maker. They can be revoked at any time. The advantage of this approach is that it offers flexibility, preserves autonomy and can be handled in an attorney’s office, without the delays or costs frequently associated with court proceedings.
An approach which has largely fallen into disfavor is the “springing” directive, which only takes effect under specified circumstances. For instance, some families might consider this for individuals with degenerative conditions, having it become enforceable only upon incapacity of the individual. But that can be difficult to prove, if the agent does not yet have access to medical records. It’s generally up to third parties to determine whether or not they will honor POAs, and there have been instances in which agents have met resistance from banks or medical professionals. However, in Hawaii, where I practice law, anyone refusing to honor a POA must support that decision in writing and may be liable for attorney fees if a court disagrees with their course of action.
Unlike POAs, guardianships and conservatorships involve a loss of certain civil rights by the “ward.” The legal proceedings through which they are established require significant evidence-gathering, due process and court action. Capacity is rigorously analyzed through medical and psychological assessments, as well as standardized tests and interviews.
As with POAs, guardianships and conservatorships can be tailored to meet individual circumstances. In some states, a guardian handles personal matters such as health care, living arrangements and education, while a “conservator” focuses on financial matters. Documentation should be as explicit as possible concerning what rights the ward will retain—such as the ability to vote. Since guardians have a court order backing them up, their authority is seldom challenged by banks, physicians or other service providers.
Guardianships need not be permanent, and most court orders can be modified based on future changes in circumstances. One of my clients, who is on the autism spectrum, was placed into guardianship at 18, but by the age of 25, she’d graduated from college and wanted to join the military. We dissolved the guardianship, and she’s now in the armed forces.
Most state statutes give parents priority when selecting guardians for adult children with disabilities. But courts are not required to decide in the parents’ favor unless they feel that a “clear and convincing” case has been made that they are the “most appropriate” choice. Divorced parents who may not cooperate with one another, for instance, may be denied a joint petition. In addition to family members and friends, social service agencies, attorneys and other professionals are available to assume guardianship responsibilities.
Some families may be tempted to choose a limited POA to save legal fees, but it’s wise to seriously consider all options, as well as long-term needs. Selecting the “cheaper” alternative may actually prove more costly if changes in a person’s capacity require new agreements, or if the original document fails to provide adequate protection. For example, one family I worked with attempted to rely on a power of attorney to help their loved one manage finances. The individual later revoked the power of the parents to act, granted authority to some “friends,” then proceeded to help the newly designated agents obtain credit cards and cell phone contracts. Addressing all of those challenges was likely more complicated than initially seeking guardianship.
If either the ward or agent/guardian must move to a different state, there should be careful upfront planning, and attorneys in each state should be retained. There may be variations with regard to the definition of capacity, guardianship authority and much more. It may even be necessary to begin the POA/guardianship process from scratch. The POA/guardianship decision has important implications for an individual’s quality of life and it’s advisable to consult an attorney who has a strong background in special needs planning. Experienced professionals can assist parents in making these often emotional choices, steering them through the nuances of state law, while helping them to determine the right mix of independence and security for their loved one.
Scott C. Suzuki, Esq., is president-elect of the Special Needs Alliance, a nonprofit comprised of attorneys who serve individuals with disabilities and their families.
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This post originally appeared on our January/February 2015 Magazine