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The following information is educational in nature. It is designed to
provide basic information regarding guardianship. Nothing in this article is
intended to be legal advice. Every situation is unique and therefore the
advice of an attorney is recommended for specific situations.
Parents of children who have disabilities have many issues to worry about.
Perhaps one of the greatest is who is going to look out for and protect
their child when they are no longer able to do so? When thinking of this
eventuality, parents may turn to other family members or friends to step
into their role should they become incapacitated or die. Alternately,
parents may arrange to have this done by an individual advocate or a
nonprofit, community-based organization whose mission is to support and
advocate for individuals with disabilities.
Advocates can advise and offer assistance concerning the person who has
special needs, but cannot make decisions that are legally binding for that
person. The power to make legal decisions for another individual is done
through guardianship or conservatorship.
What is Guardianship/Conservatorship?
Every person eighteen years of age or older is deemed to be competent by
law, regardless of his or her actual ability or capacity. A guardianship or
conservatorship, in general, is a legal mechanism that must be approved by a
court that grants a competent adult legal power to make decisions for
another person, one who is considered incapable of making decisions for
himself or herself. This person may be a minor (under 18 years of age) or an
adult who has been declared incompetent by the court. In the case of a
minor, guardianship will generally terminate when the child turns 18, or, in
come states, upon marriage if the child marries before age 18.
Legislation regarding guardianship varies by state, but generally, the
guardianship procedure requires a petition to be filed in Probate Court.
Also, a clinical team (consisting of a physician, licensed psychologist and
social worker) must report that the individual is incapable of making
informed decisions with respect to personal and financial affairs, and that
failure to appoint a guardian would create an unreasonable risk to the
individual’s health and safety.
When parents prepare for the future by making a will, it is crucial to
consider the issue of naming a guardian or conservator for a dependent child
or adult with a disability. Unless the parents’ will specifies who they want
as guardian or conservator, the courts will decide. If appointed, a guardian
has the control over the ward’s (the person who is represented by the
guardian) personal and financial affairs. A guardian must file an inventory
and annual accounts with the Probate Court. As a result of relatively new
case and statutory law, there are certain important decisions that a
guardian cannot make without specific court authorization. These include
consenting to treatment with anti-psychotic medications, admission to
psychiatric hospitals or consenting to experimental medical treatment.
There are different types of guardianship or conservatorship, each of which
confers different powers.
A Natural Guardian generally refers to a parent. In most cases, a natural
guardian has custodial rights but only limited rights to control the assets
of a ward.
A Guardian Ad Litem is often appointed only for the limited purposes of
litigation.
Guardian of the Estate, Guardian of the Property, or Conservator usually
refers to someone appointed to manage assets and make financial decisions
for the ward.
General Conservatorship or Guardianship of the Person and Estate typically
provides full decision-making powers (with respect to finances, medical
decisions, living arrangements, etc.) for a person deemed to be unable to
make decisions or perform necessary tasks on his or her own.
Limited Guardianship/Conservatorship
Powers of a conservator or guardian can often be limited to reflect the
needs of the individual who has a disability. With a limited guardianship,
the guardian is granted full power only in a specified area or areas in the
life of the person with a disability. In fact, laws in a number of states
specifically provide for the appointment of a limited conservator or
guardian for certain individuals with developmental disabilities. A limited
conservator or limited guardian is appropriate for individuals whose
conditions impair their ability to care for themselves or their property,
but not to the extent that a general conservatorship or full guardianship is
required. A limited conservatorship or limited guardianship encourages
maximum self-reliance and independence of the adult with developmental
disabilities by giving the conservator or guardian power only over those
activities the individual is unable to handle.
Alternatives to Guardianships/Conservatorships
Not all situations require the appointment of a guardian. In certain
situations, a person with a disability may only need assistance and
protection managing money rather than require the services of a
court-appointed guardian and all that it entails. In these circumstances, an
alternative to guardianship is a Supplemental Security Income Representative
Payee who can be designated by the Social Security Administration to receive
and disburse SSI benefits on behalf of that person. The Representative Payee
must make an annual accounting to the Social Security Administration on how
the funds are spent.
Another alternative to guardianship is a Durable Power of Attorney. By
signing a Durable Power of Attorney, a person with a disability can allow
certain decisions such as those concerning management of his or her
property, living situation or medical care to be made by another specified
person, without court intervention. Certain rights can be preserved without
the expense and time of court proceedings.
Additionally, a Special Needs Trust can be effectively administered by a
trustee (one who manages the trust) or co-trustee to manage the finances and
personal effects of a person with a disability, in lieu of a court-appointed
general conservatorship or guardianship. In some situations, a skilled
trustee or co-trustee can help meet the financial and personal needs of a
person with a disability without court intervention or a restriction of
certain rights. However, in the situation of only one individual serving as
trustee and guardian, opportunities for “checks and balances” are decreased,
posing the possibility for conflict of interest.
Whom to choose as Guardian
The appropriateness of the person being nominated should take into account
some basic, yet often overlooked aspects:
Age: The age of the potential guardian in relation to the length of time
that the guardian will have to serve should be considered. If the ward is a
child, he may outlive a guardian such as a grandparent, aunt or uncle. For
this reason, or in case any other situation arises where the guardian is
unable to fulfill the task, parents should consider naming a “back-up” or
contingent guardian in addition to their first choice.
Existing relationship with the ward: The guardian’s function is necessarily
one that entails making personal decisions for the ward, so the guardian
should be someone whom the individual trusts and with whom he or she has a
good relationship, and who will actively participate in care decisions,
provision of services and attention to the needs of the individual.
Professionals or institutions, such as attorneys, accountants or banks, can
be named but are not necessarily a good choice since their services are
usually costly and, lacking any personal relationship to the individual, may
not be sensitive to his or her needs.
What is the role of other family members?
Family members are usually the first and best choice as guardian or
conservator; however, it should not always be presumed that this will be the
case. Family members may not be suited for the role for a variety of
reasons: they may not live nearby; they may not have the ability to assume
the responsibility; naming one sibling or family member over another may
cause friction; or they may simply not want to take on the job. However, by
naming co-guardians to share the responsibilities or by asking them to
assume other, related roles, family members can be included. They can be
named to act as advisors to the guardian or conservator, be notified of
certain actions and be copied on all important documents relating to
decisions made by the guardian.
Making choices
A guardian or conservator will have considerable power in the life of the
individual with a disability, so the individual should have as much input as
possible in the choice. The process should evolve from discussions that
include the person who has a disability as much as possible and an attorney
who is knowledgeable in this type of planning. A clear, realistic picture
should emerge of what possible future needs and decisions will have to be
addressed (financial, residential, educational, health-related) and how much
help the individual will need with each. The wishes and feelings of the
parent and the child can be objectively discussed and incorporated into the
level of support that is needed, and choices for guardians or advocates can
be made as necessary.
Nadine O. Vogel, MBA is Vice-President of Marketing and Creator of
MetDESK; Ms. Vogel is also the parent of two children with special needs.
Contact MetDESKSM, MetLife’s Division of Estate Planning For Special Kids (www.metlife.com/desk
or 1-877-MetDESK) for more information.
Reprinted with permission from Exceptional Parent Magazine – June 2003
issue.
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A special needs
trust is the only estate planning option that protects assets, enables the
beneficiary to receive goods and services from the estate, and still
preserves eligibility for government benefits. |
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