Imagine these scenarios…
- Your son just turned 18 and you received a call that he slipped and fell while at the market and is in the hospital. You rush to the hospital to see him and ask the staff how he is. What happens?
- Your daughter is 18, still in school and has an individualized education plan (IEP) meeting this morning. As you approach the counselor’s office, she turns to you and says, “Mom, I want to do this alone. ” What happens?
- Your son who has autism just turned 18 and received credit card offers in the mail. He applies for the card, but you don’t thinks it’s a good idea. What happens?
In most states, when someone turns 18 they are considered an adult and are expected to make all the right decisions about finances, medical and life. They can vote, open bank accounts, enter into binding contracts, buy a car, move out the house. You may remember the feeling of independence when you turned 18. However, this may present a dilemma for some caregivers of dependents with special needs.
Most caregivers want their dependent to be as independent as possible. But for some dependents, making day-to-day decisions can be challenging. Essentially there are two types of decisions that can be made – personal and financial. Some dependents may be able to make both, one or the other or none at all. When this happens and help is needed, you may want to consider different forms of guardianship.
Who would make the best guardian?
Guardianship (for adults) is a legal process during which a person (usually a family member) asks the court to determine whether a person is able to make important decisions and/or manage their own affairs on a daily basis.
In most states, a guardian is responsible for personal decisions ranging from day-to-day decisions like housing and food to medical decisions.
A conservator, in most states, is responsible for decisions regarding public benefits, such as Medicaid and Supplemental Security Income, property, income and financial matters. The guardian and conservator can be the same person but does not have to be.
Some caregivers feel that a relative or family friend is best suited as a guardian, as they know the dependent’s wishes and needs. And maybe an institution, such as a bank, would be better at handling financial decisions because of their expertise and longevity or a combination of bank and relative or family friend as co-conservators.
If the caregiver and their dependent feel guardianship is right for their circumstance and the dependent is over 18, then the caregiver must file for guardianship in family court. But if the dependent is under 18, the caregiver can name a guardian and conservator in a will. If a guardian is named in a will, the state has final approval but will give the choice in the will highest regard. If a guardian is not in the caregivers will, the court will make the decision, and it may not be the person who would have been chosen.
Choosing a guardian is not easy
You want someone you can trust with your life. Make sure the person is willing to serve in this capacity. Should one caregiver pass away, generally the surviving caregiver is entitled to custody of the dependent. However, it is customary to name the other parent as the primary guardian. A successor guardian should also be chosen, in case the first guardian chosen is not willing to serve or dies.
If the caregivers are divorced, and especially if there is a joint custody agreement, one caregiver may want to name themselves as the guardian. If not, the other caregiver may petition the court for custody.
If a caregiver is single, naming a guardian is even more critical because your loved one depends on the caregiver alone.
If guardianship is needed?
A person under guardianship can lose the authority to make decisions about their personal life, as that authority is now with the guardian. Consider these alternatives:
- Family guidance. A family member can offer guidance and advice; however, the dependent may be easily influenced and taken advantage.
- Supportive or group housing. If the dependent needs a little guidance, there are professionals or providers who provide those services. Usually, a case manager can help.
- Special needs trust. A trust is helpful but may have restrictions. There are several different types.
- Durable power of attorney. A person who make decisions on behalf of the dependent.
- Financial representative. Can help with managing money.
Naming a guardian
States usually prefer a caregiver, but if none are available, then it’s ok to appoint another relative or family friend.
If they are not an option, then the court may appoint someone.
Guardians are accountable to the court, which helps ensure that finances are handled properly. Guardianship does not end when a guardian can no longer serve, but rather another guardian is appointed.
A guardian is appointed by the court. The need for guardianship has to be proven to the court.
Obtaining a guardianship
The court determines if there is a lack of capacity to make certain decisions, that the proposed guardian is fit to serve and that there are no less restrictive alternatives available.
Generally two attorneys are present; one for the person to be cared for and another for the prospective appointee. Witnesses may also be called. The judge will determine that the dependent with special needs does or does not have capacity. This is important because the dependent may be able to make some decisions and not others.
The court outlines the duties of a guardian. Generally, these will only be to provide for the need of the dependent. Sometimes a guardian will have to ask for special permission, such as for the sale of a piece of property or to change living circumstances.
The guardian must file a report, usually annually, to verify that the dependent’s needs are met. If finances are involved, records must be kept and reconciled. If the guardian fails to satisfy the court, they may be removed or subject to civil penalties, or both.
Guardianship in your state
Be aware that guardianship laws vary state to state. It is always best to consult with a legal professional experienced in these areas.
Most special needs providers and advocates recommend the least restrictive form of guardianship or conservatorship. Independence, dignity and integrity are in the best interest. If a person has capacity, it is important to involve them in the decision-making process.