Independence + Security Balance: Balancing Independence with Security Guardianship and Its Alternatives
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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