Guardianship, Conservatorships and Alternatives
Estate planning and planning for your minor and adult children is a difficult process, but becomes even more complicated and emotional when you have a child with a disability. However, it is important to start this process early so that you and your family have time to make informed choices. Part of this planning process includes helping your child prepare for adulthood and the age of majority.
Research Article: Guardianship and the Potential of Supported Decision Making With Individuals with Disabilities
Guardianship is the legal process of determining a person’s capacity to make decisions for himself regarding his personal affairs (such as where he lives or the care he requires.)
Conservatorship is similar to guardianship, but deals only with financial affairs of an individual. It is not unusual for the powers of guardianship and conservatorship to be vested in the same person.
A Guardian is a person appointed by the Probate Court to handle the affairs of a person who has been adjudged to be incapacitated, i.e., not capable of handling his own personal affairs.
A Conservator is a person or corporation appointed by the Probate Court to handle the financial affairs of a person who has been adjudged to be disabled, i.e., not capable of handling his own financial affairs.
Guardianship for a minor, a person under the age of 18, is generally vested with that person’s parents.
The principle of least restrictive environment should apply in any guardianship or conservatorship situation. In other words, an individual should retain control of his own personal and financial life to the maximum extent possible. If a judge finds that an individual is only partly incapacitated or disabled, he should issue an order of limited guardianship or limited conservatorship, or both. In so doing, he should spell out in his order the specific powers that he is conferring upon the guardian or conservator. The ordering of guardianship or conservatorship for a person is a legal process. The person who wants to be a guardian or conservator must apply to the Probate Court to attain that position. The Probate Judge must then appoint an attorney to represent the person for whom guardianship and or conservatorship is being sought.
A hearing must be held at which time it is incumbent upon the applicant to prove that the person for whom he wants to be guardian or conservator really needs the protection. Though not always necessary, a person applying for guardian ship or conservatorship is probably well advised to do so with the assistance of an attorney. A person for whom a guardian is appointed is knows as a ward and a person for whom a conservator has been appointed is a protectee.
At the court hearing, full due process rights are accorded to the respondent–the person for whom a guardian or conservator is being sought. Anyone may be appointed as guardian or conservator for a person found to be incapacitated or disabled. However, the judge should give preference to immediate family members, and the person chosen should have consented to the appointment.
The guardian/conservator is required to file an annual report with the court, explaining pertinent circumstances of the ward/protectee. From that report, the judge can determine if there needs to be a change in his order of guardianship or conservatorship. Actually, the judge can change that order any time he feels it necessary.
A guardian is not responsible for the financial condition of his ward. Legal and court costs of guardianship or conservatorship proceedings against an individual will be charged to his county of residence if he cannot pay for them himself.
Alternatives to Guardianship: Here is an publication from the Rural Institute on Disabilities about alternative to guardianship.
Special Needs Trust
The only reliable method of making sure that the inheritance actually reaches a person with a disability when he or she needs it is through the legal device known as a special needs trust (SNT). The SNT is developed to manage resources while maintaining the individual’s eligibility for public assistance benefits.
This trust agreement for the benefit of a person with a disability allows for a fund to be created that will pay for items and services not covered by Medicaid and other governmental benefits. The trust should be set up by an attorney, and you may want to consult a financial planner for additional assistance. A trustee will be authorized to spend money on behalf of the individual with disabilities for supplemental purposes like recreational opportunities, vacations, personal items, Christmas and birthday gifts and so forth. It is essential that you consult with an attorney so that all of the implications of any changes in the interpretation of the law are clearly understood and communicated to you.
What is the Letter of Last Instruction?
This is a letter written by you outlining to your family, friends or attorney what to do immediately upon your death. It contains information that may need attention between the time you die and the reading of your letter of intent and your will. It is recommended that because this letter includes matters, which need immediate attention, you should draft a separate letter of instruction and a letter of intent.
Suggestions to be included in your letter are:
- Who should tell your son or daughter of your death and if they should attend the funeral.
- Who should care for your son or daughter immediately after your death, until the letter of intent can be read? If he/she does not live with your son or daughter’s address and phone number
- Your desired funeral arrangements (e.g., cost, location). If your funeral is prearranged list all of the necessary information.
- People to notify of your death and funeral, along with their names addresses and phone numbers
- Names of organizations or specific causes you would like to be listed for donations.
- Location of your important documents, especially your will and other important papers. Include names of people who may need to access to these documents. If they are in a safe deposit box list all of the necessary information so they may access these papers.
- Other last instructions you may have before the reading of the will or letter of intent.
- Name and address of your attorney whom you wish to handle your legal affairs.
Once written have your attorney review your letter to make sure it does not contain information contrary to your other wishes.
Leave a copy of this letter with several family members and your attorney. Write on the envelope, ‘It is to be read immediately upon your death.’
Sign the letter; however since it is not a legally binding it does not need to be notarized.