TEN FAQs About Guardianship

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1. What is Guardianship?

A guardian is a person appointed by the Probate court to assume some decision-making responsibilities for an individual who is unable to make decisions for him- or her- self. A guardian has the legal authority and responsibility to care for the person and property of another person.  When a child reaches age 18, their parent (or parents) must apply for guardianship, if appropriate, to be able to make decisions on behalf of their adult child. 

2. What is a Conservatorship?

A conservator is a person appointed by a court or regulatory authority to supervise a person or entity's financial affairs. While guardianship can encompass all personal affairs of an individual, a conservatorship is limited to the management of the property and financial affairs.  Both guardianship and conservatorship may be full or limited in scope. 

3. When are Guardianship or Conservatorship appropriate? 

Once an individual reaches the age of 18, their parent is no longer their legal guardian. Parents need to explore legal options available to protect their child from unscrupulous individuals during the child's teenage years in order to select a preferred guardian before the child's 18th birthday.

In the case of a person with special needs, their capacity to receive, evaluate and communicate information about a decision, along with the  importance of the decision, should influence whether or not they require guardianship or conservatorship. The chart below generalizes the issues involved in guardianship vs. self-determination but may be viewed as a guideline to help parents decide when to consider intervention. Clearly, High Risk decisions, such as receiving needed medical care or spending or transferring a large sum of money, can be a first place to focus. 

Type of Decision  Individual's Ability to Receive, Evaluate and Communicate Relevant Information  Possible Action to Take
High Risk High Capacity Accept the individual's right to self- determination
High Risk Low Capacity Legal intervention indicated- e.g. guardianship or conservatorship
High Risk Moderate Capacity Talk with the individual to reduce resistance, reduce risk and  increase their capacity to understand

 


 

 

 

4. What are the alternatives to Guardianship? 

If an individual with a disability is capable of making some but not all decisions, one or more of the alternatives to guardianship discussed here should be considered. Courts will generally favor placing individuals in the Least Restrictive Environment needed and the following alternatives to guardianship are listed from least restrictive to most restrictive:

1. A joint bank account can be created to prevent rash expenditures. Arrangements can be made with most banks for benefits checks, such as Social Security or SSI payments, to be sent directly to the bank for deposit. (Remember to keep this account balance below $2,000.)

2. A representative payee can be named to manage the funds of a person with a disability who receives benefits checks from Social Security, Railroad Retirement, or the Veterans Benefits Administration. Benefits checks are sent to the representative payee, who manages these funds and spends them for the benefit of the person with the disability. 

3. A durable power of attorney (POA) for property is a legal document that grants one person the legal authority to handle the financial affairs of another. Generally, the use of a POA should be used when the individual with disabilities has the capacity to make basic meaningful decisions and does not require full guardianship but may not be able to make complex financial decisions without support.

4. A durable POA for health care, also known as a health care proxy, is a legal document granting decision making powers related to health care to an agent; it may generally provide for the removal of a physician, the right to have the incompetent patient discharged against medical advice, the right to medical records and the right to have the patient moved or to engage another treatment. A durable POA should be considered for individuals who are presently capable of making decisions about their health care and wish to anticipate possibly future incompetence.

5. An appointment of advocate and authorization allows a person with a disability to designate an agent to advocate on his or her behalf with administrative agencies such as the state department of cognitive disability, the department of mental health services, or the department of medical assistance.

6. Trusts may be an appropriate alternative to appointment of a guardian in some circumstances. A trust is a legal plan for placing funds and other assets in the control of a trustee for the benefit of an individual with a disability - or even for those with no known disability.

7. As mentioned previously, guardianship is an option for persons who, because of mental illness, developmental disability, or physical disability, lack sufficient understanding or capacity to make or communicate responsible decisions concerning their care and financial affairs. Guardians are approved and appointed by the court. Guardianships are also supervised by the court. The guardian provides a report on the status of the individual to the court annually.

5. What are the key roles and responsibilities of a guardian?

A Guardian’s duties will vary depending on the adult’s abilities and limitations, but generally include the following (Source :Massachusetts Guardianship Association):

  • Ensure the adult’s living situation is safe and appropriate (least restrictive environment)
  • Provide for the adult’s everyday basic needs and safety
  • Make ordinary medical care decisions and arrange for needed treatment
  • Provide for the social, educational, recreational and future needs of the adult
  • Apply for health insurance and other benefits, if needed
  • Advocate for the adult’s legal rights and independence
6. What are the qualities to look for when selecting a guardian?

Who should serve as guardian and successor guardian for an adult with disabilities?  Any person over the age of 18 may be a guardian. Many times parents will ask the court to appoint one or both of them as guardians but even in this case, the choice of a successor guardian remains. 

Parents should talk with potential successor guardians to be sure they fully understand the responsibilities and the resources that accompany this role. One of the big issues is where the adult with disabilities, also known as a ward, will live. The ward may be living independently in a residence, at home, or may be directed to live in the home of the proposed guardian. In some instances, it may be appropriate for the stability of the ward to have the guardian move into their home.

While proximity is important, parents should think carefully about their family and friends and consider successor guardian decisions based not on which sibling is the oldest or who is living closest, but who will best attend to the care and protection of the ward if the parent is not living. In addition to naming the successor guardian in their will,  parents should prepare a Letter of Intent to provide guidance on the details of daily living. 

7. How long do the responsibilities of a guardian last? 
 
Guardianship ends when a guardian dies, is unable to perform their duties or petitions the court that they no longer want guardianship of the individual. The court will appoint a new guardian, many times a successor guardian identified by the parents. 
 
8. What are the financial responsibilities of a guardian? 
 
In general, the guardian or conservator is responsible for handling the individual's/ward's financial resources, but is not personally financially responsible for them from his or her own resources.
A ward may have a special needs trust established for him or her, and there will be a trustee appointed to oversee the management of the assets in the trust. The guardian will request funds from the trustee to maintain the ward’s household, and pay for trips, vacations, clothing, etc., for the ward's benefit. It is important to have the guardian and trustee have a respectful and trusting relationship, as the trustee may resist making some requested distributions if the guardian and trustee have a conflict. 
 
9. How and when do you ask someone to be a guardian?
 
Planning for guardianship is a critical legal task for all parents and even more so for parents of a person with disabilities. There should be careful consideration of family, friends and professionals in determining who would be best suited to each role in helping care for the individual once the parents no longer are living or able to do so. As highlighted in the story of our own Nadworny family's planning for James' guardianship, if there are resources, it is possible to provide for the retirement, healthcare and other necessary expenses for a guardian from a special needs trust.  
 
10. How do you implement your plan for guardianship?
  • Nominate a guardian in a will. A parent may nominate someone to be guardian of his or her child (whether under 18 or, if disabled, 18 and over).This person will still have to be confirmed by the court after the parent’s death, but is wise to include the nomination in the will so the parent’s preference is known.
  • Designate a standby guardian. Most states have a process by which a parent can designate a guardian to take care of a child in the event the parent is incapacitated or has died. If the parent believes his or her choice of guardian will be contested by the other parent or by family members, the guardianship designation can be confirmed by the surrogate or probate court before the parent dies. Not all states have this process, but if it is available in the state in which the child lives, the parent should both nominate a guardian in his or her will and designate a standby guardian.

Sources: 

The Special Needs Planning Guide, How to Prepare for Every Stage of Your Child's Life

Massachusetts Guardianship Association

Special Needs Alliance

 

 

 

 

This information is not intended to be a substitute for specific individualized tax or legal advice. We suggest that you discuss your specific situation with a qualified tax or legal advisor.