Guardianship and Less Restrictive Alternatives

| Jan 21, 2015 | Children, Guardianship |

Guardianship is a legal means of protecting children and ” incompetent adults” who cannot take care of themselves, make decisions that are in their best interest, or handle their assets due to a physical or mental disability. 

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 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.  

Making the decision to seek the appointment of a guardian is a complicated issue. A petition for guardianship should not be filed automatically simply because a child has reached the age of 18.  Parents, or other potential guardians, must carefully consider the person’s individual circumstances, including strengths and weaknesses, needs, and best interests, before deciding to seek guardianship. If an individual with a disability is capable of making some but not all decisions, one or more of the alternates to guardianship should be considered.

  • 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. In addition, arrangements can be made for authorizing the bank to send certain sums of money on a regular basis to a specific party, such as the landlord or the person with a disability for spending money.  This helps provide structure to allow for budgeting and money management. Remember to keep this account balance below $2,000.
  • A representative payee can be named to manage funds of a person with a disability who receives benefits from Social Security, Railroad Retirement, or the Veterans Benefits Administration. The required duties of a representative payee is to determine the beneficiary’s needs and use his or her payments to meet those needs, save any money left after meeting the beneficiary’s current needs in an interest-bearing account or savings bonds for the beneficiary’s future needs, and complete an annual written report accounting for the use of the funds.
  • A durable power of attorney (POA) for the property is a legal document that grants one person the legal authority to handle the financial affairs of another.  This is useful for persons who are mildly or moderately incapacitated and capable of choosing another person to handle their money. 
  • A health care proxy should be considered for individuals who are presently capable of making decisions about their health care and wish to anticipate possible future incompetence.  This is a legal document that enables a competent individual (the principal) to designate a health care agent to make health decisions should the individual become incompetent to make them.

The legal rights and public awareness of individuals with disabilities have increased over the years. Because of the advocacy efforts of individuals and families, laws have been enacted to protect these rights. It is important to know your rights as well as the rights of your family member with disabilities. Understanding and using the law will enable the individual with disabilities to achieve their maximum potential. Knowing how and when to use these laws is an essential part of the planning process.  

The Law Offices of Renee Lazar keeps abreast of information and changes in laws and can aid in developing an integrated plan that meets your needs as well as the needs of your child with a disability.

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