Guardianship Considerations for Individuals with Disabilities

Posted by Patricia Manko on Thu, Jul 11, 2013 @ 01:47 PM

describe the imageGuardianship is a legal means of protecting children and  "incompetent adults" (in legal terms, adults who cannot take care of themselves, make decisions that are in their own best interest, or handle their assets due to a physical or mental disability). When the court determines that a person is incapable of handling either their personal or financial affairs a guardian will be appointed.

The subject of guardianship for an adult child with disabilities is of concern to most parents. Parents of children with severe disabilities often assume that they can continue to be their adult child's legal guardian during the child's entire life.

Although it may be obvious to a parent that a child does not have the capacity to make informed decisions, legally an adult is presumed competent unless otherwise determined to be incompetent after a competency proceeding. Once an individual reaches the age of 18, the parent is no longer the individual's legal guardian. Parents need to explore legal options available to protect their child from unscrupulous individuals who may exploit their child's inability to make informed choices.

Download a template for your Letter of Intent

Some things to know when considering guardianship:

a. A guardian of the person is responsible for monitoring the care of the person with disabilities to ensure that the individual is receiving proper care and supervision. The guardian is responsible for decisions regarding most medical care, education, and vocational issues.

b. A guardian of the estate or conservatorship should be considered for a person with disabilities who is unable to manage their finances and have income from sources other than benefit checks, or have other assets and/or property.

c. A guardianship may be limited to certain areas of decision making, such as decisions about medical treatment or medications in order to allow the individual to continue making their own decisions in all other areas.

d. A temporary guardian or conservator may be appointed in an emergency situation when certain decisions must be made immediately.

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. These 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.

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, 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 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.

In general, the guardian or conservator is responsible for handling the individual's financial resources, but is not personally financially responsible for them from his or her own resources.

This list of alternatives to guardianship is not exhaustive, but worth speaking with an attorney about. As with all legal decisions, we suggest you seek legal advice from an attorney who is knowledgeable in disability law in the individual's state of residence.

Contact us for  further information

Tags: Special Needs Financial Planning, Special Needs Trusts, guardianship, special needs Letter of Intent

The Five Factors of Special Needs Financial Planning

Posted by Patty Manko on Thu, Jan 24, 2013 @ 02:53 PM

five actors of special needs planningOne of the major obstacles that can prevent  families from planning is that they are frequently consumed by daily crises. The thought of planning ahead can simply be overwhelming. Realizing that each family situation is unique, we have identified the Five Factors that must be considered in conjunction with special needs planning.

These core planning points are by no means an exhaustive list of planning points. They will provide a baseline of what should be considered in special needs planning for every stage. Think of them as the basics you need to consider regardless of the age of your family member. They should, of course, be reexamined from time to time to be certain the recommendations stay current with your own family's needs.


FAMILY & SUPPORT FACTORS:

  • Ask the people whom you want involved with your family member's life whether or not they want to be involved before you just name them in your plan. 
  • Help prepare future guardians, caretakers, trustees and successors for their roles.
  • Complete a Letter of Intent -click here to download a sample letter of intent.
  • When grandparents or other friends or relatives offer to help by including your child in their gift or estate plans, say THANK YOU. 
  • Encourage them to have their advisors speak with your advisors who specialize in disability planning. 
  • Be connected with family support agencies in your area.

EMOTIONAL FACTORS:

  • Help your other children to meet and talk with children similar in age who also have a sibling with disabilities.
  • Seek professional help when you need it.
  • Be patient with yourself, your spouse and your family.
  • Learn as much as you can about your child's diagnosis and abilities.

FINANCIAL FACTORS:

  • Review your current financial plan -as often as possible.
  • Work with a professional who is knowledgeable in disability planning. Click here to view our checklist for interviewing a financial planner. 
  • Protect your family with adequate life insurance, long-term disability insurance, and long-term care insurance coverage for primary caregivers.
  • Identify all employee benefits for which you are eligible.
  • Do not establish a savings or investment account in your child's name.


LEGAL FACTORS:

  • Review your current estate plan -at least every five years. 
  • Create a Special Needs Trust
  • Name a guardian for your child or children in the event of your premature death or disability.
  • Check beneficiary designations on all life insurance, retirement plan accounts and annuities. These include employer benefit plans too.


GOVERNMENT BENEFIT FACTORS:

  • Advocate for your child. Join forces with your state & local advocacy agencies.
  • Know and pursue your child's legal rights and entitlements.
  • Maintain eligibility for your child's government benefits at all times, even if they are not currently receiving them.
  • Apply for Social Security Survivor's benefits promptly when a parent of a child with a disability dies.
special_ needs_financial_ planningFor further information about the Five Factors of Special Needs Financial Planning, click here to contact us.

Tags: Special Needs Financial Planning, Special Needs Trusts, five factors of financial planning, Letter of Intent, guardianship, special needs Letter of Intent

Siblings and a Letter of Intent

Posted by Patricia Manko on Thu, Nov 08, 2012 @ 05:18 PM


describe the imageParents should make a point to complete the Letter of Intent to document the important aspects of your child’s life. Share it with the future caretakers today, including siblings and make it a living document.  Don’t just leave it for them after you are gone.

 Determining Roles for Siblings to Play

 A pragmatic approach is an effective means to define a role for siblings. This approach can utilize assigning defined responsibilities.

Responsibilities may be shared.  Tasks and roles may be shared, which will allow a sibling to contribute without feeling overwhelmed that they have to be the ” everything” or “IT” person in the family.

Partner with a professional. Siblings can partner with experienced special needs planning professionals to help them provide the best solutions for their brother or sister.

describe the imageSome functional roles siblings may play:

Caregiver, Guardian

Health care proxy, Power of attorney,

Conservator, Trustee, Trust advisor

 Investment manager, Tax preparer,

 Bookkeeper to help pay bills,

 Representative payee for  SSI

  Advocate

                  Just be a brother  or sister!

For more information, click below to attend a presentation of No Sibling Left Behind or Planning is a Family Affair

Contact us for  further information

 

 

Tags: siblings, Letter of Intent, friendship, guardianship, special needs Letter of Intent

Special Needs Financial Planning on Guardianship -Part II

Posted by Patricia Manko on Thu, May 17, 2012 @ 03:26 PM

guardianship resized 600If 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. These 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.

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, 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 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.

This list of alternatives to guardianship is not exhaustive, but worth speaking with an attorney about.

In general, the guardian or conservator is responsible for handling the individual's financial resources, but is not personally financially responsible for them from his or her own resources.

Tags: Special Needs Financial Planning, Special Needs Trusts, guardianship

Special Needs Financial Planning on Guardianship -Part I

Posted by Patricia Manko on Tue, May 15, 2012 @ 01:20 PM

describe the imageGuardianship is a legal means of protecting children and "incompetent adults" (in legal terms, adults who cannot take care of themselves, make decisions that are in their own best interest, or handle their assets due to a physical or mental disability). When the court determines that a person is incapable of handling either their personal or financial affairs a guardian will be appointed.

This two-part blog will first discuss some important considerations when making choices for your adult child with disabilities and then in part II  outline choices of guardianship from least to most restrictive.

The subject of guardianship for an adult child with disabilities is of concern to most parents. Parents of children with severe disabilities often assume that they can continue to be their adult child's legal guardian during the child's entire life.

Although it may be obvious to a parent that a child does not have the capacity to make informed decisions, legally an adult is presumed competent unless otherwise determined to be incompetent after a competency proceeding. Once an individual reaches the age of 18, the parent is no longer the individual's legal guardian. Parents need to explore legal options available to protect their child from unscrupulous individuals who may exploit their child's inability to make informed choices.

Some things to know when considering guardianship:

a. A guardian of the person is responsible for monitoring the care of the person with disabilities to ensure that the individual is receiving proper care and supervision. The guardian is responsible for decisions regarding most medical care, education, and vocational issues.

b. A guardian of the estate or conservatorship should be considered for a person with disabilities who is unable to manage their finances and have income from sources other than benefit checks, or have other assets and/or property.

c. A guardianship may be limited to certain areas of decision making, such as decisions about medical treatment or medications in order to allow the individual to continue making their own decisions in all other areas.

d. A temporary guardian or conservator may be appointed in an emergency situation when certain decisions must be made immediately.

As with all legal decisions, we suggest you seek legal advice from an attorney who is knowledgeable in disability law in the individual's state of residence

Tags: Special Needs Financial Planning, Special Needs Trusts, guardianship

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