Does Your Special Needs Child Really Need a Guardianship?

October 19, 2009

Last week I gave a presentation to Weymouth parents of special needs young adults, and from our conversation, it was clear that the school system was telling them that when a special needs child turns 18, the family must obtain a guardianship. As I’ve written elsewhere, this costs money, involves lawyers, and requires going to court. And for kids with developmental disabilities, there is the daunting clinical team report, which requires coordinating three different professionals.

Fortunately, guardianship (and its accompanying conservatorship) is not necessarily the answer for every family. For lots of kids, a Health Care Proxy and Durable Power of Attorney are the way to go. I don’t know why school special ed personnel are not educated on this, but the Health Care Proxy and Durable Power of Attorney are much more respectful of the young adult’s autonomy and cost significantly less – thousands of dollars less – with a fraction of the hassle.

To sign her Health Care Proxy and Durable Power of Attorney, the young adult needs to have a basic understanding of what she is appointing the named agents to do (usually her parents, but not necessarily – it’s up to her to decide whom to name). Ask yourself: Does she understand that money buys her things? That money must be saved and spent with care? Does she like to have someone help her manage money and make decisions? Does she like to have someone involved with her medical care? Would she like for someone to be able to tell doctors what to do if she can’t tell them herself?

If you think the answer to these questions is “yes,” then meet with a special needs attorney to discuss a Health Care Proxy and Durable Power of Attorney instead of guardianship and conservatorship. Technically speaking, the question of whether a person has the requisite mental capacity to sign these documents is a legal one, so the attorney will need to meet with the young adult alone – maybe more than once – to make that determination for herself.

And if the attorney decides that indeed this young adult can create and sign these documents, than the small investment you have made is more than outweighed by the savings of avoiding guardianship and conservatorship – in terms of the young adult’s autonomy and your family’s time, money, and emotional capital.

My Spouse Died – What Do I Need to Do to Protect Myself?

July 24, 2009

After a spouse dies and the family gets through the funeral, the immediate concern is to square away the couple’s assets and make sure the surviving spouse has enough to live on. After that, there is one more step to take: protecting yourself.

One area where you need to be proactive is to consider who will be able to assist you with financial and health matters if you become ill or incapacitated. Before, you and your spouse relied on each other to serve in these roles. Now you need to legally appoint someone to be able to step in and help you. At this point, you definitely need to execute a Durable Power of Attorney and Health Care Proxy. And many people like to add a child to their bank account so she can easily help with paying bills. See my blog post on how to do this appropriately (don’t add her as a joint owner!).

If you go to see your elder law attorney after your spouse has passed away, in addition to helping you transfer your spouse’s assets to your name, she will also help you put in place these fundamental documents that will serve to protect you, should you ever become unable to handle your affairs or medical decisions yourself.

It Just Got More Expensive to Ignore Your Estate Planning in Massachusetts

May 3, 2009

As part of your estate planning work, your attorney will prepare a Durable Power of Attorney and Health Care Proxy.  These documents are critical to allow another person whom you appoint to legally care for you when you are unable to manage your own affairs, for example, if you are in a car accident, develop dementia, or are having a rough patch after a surgery.

What happens if you don’t sign these documents when you are able to and later need someone to act for you?  Your family will need to go to court and pursue a guardianship, which is an involved court proceeding.  When everything goes smoothly, this can take several weeks, usually requires hiring a lawyer, and then there are annual reports that your agent must make to the court.  All this is paid for out of your bank account, and it can easily add up to thousands of dollars.

Starting on July 1, 2009, the Massachusetts guardianship process will be even more involved and more expensive.  The legislature added several components which will do a much better job at upholding the due process rights of the public than our existing laws.  Doctors will have to complete lengthy, detailed reports attesting to the fact that the patient cannot manage her own affairs – these reports are not covered by health insurance.  Lawyers will need to draft documents that are much more detailed pleadings concerning the incapacitated person’s need for assistance.  And the lawyer and the family together will need to draw up a detailed plan for the person’s care complete with milestones and goals.  Annually, the family will need to write and file with the court a report specifically detailing the incapacitated person’s living situation, health status, and finances, and consider whether the person has improved so that perhaps the guardianship is no longer needed. 

All of this will cost a lot of money and take up a good deal of time.  Instead, you can today plan to meet with your elder law attorney and for only a few hundred dollars, write and sign a Durable Power of Attorney and Health Care Proxy.  It’s that simple.

“Do Your Documents” Now – and Avoid Guardianship Later

February 23, 2009

Imagine… you grow older and your memory starts to go.  You fall and sustain and injury requiring surgery, and the anesthesia corrupts your mind to the point that you can’t handle finances, make decisions, or even participate meaningfully in your health care.  If you didn’t execute a Durable Power of Attorney and Health Care Proxy when you were well, then your family will have no choice but to pursue a guardianship. 

Guardianships cost money, perhaps $2000 if there are no arguments within the family.  Your children will have to hire a lawyer and go through a lengthy court process.  In the end, the court will appoint someone a “guardian” and from that moment on you will be legally stripped of your power to handle your own affairs and the guardian will make every decision for you.  Is there room for abuse here?  Absolutely.  This story from Minnesota shows both high litigation costs driven by disagreeing family members and also seemingly self-interested decisions by a third-party “professional” guardian – burning through $673,000 of the woman’s assets in two years. 

Instead, get thee to a lawyer and “do your documents.”  For just a few hundred dollars – and that’s including the initial consultation – you can draft a Durable Power of Attorney and a Health Care Proxy that allows you to name exactly who you want handling your affairs someday, in the event that you can’t speak for yourself.  Sure beats spending a lot of money to go through a court process that could easily appoint someone you wouldn’t want making your decisions. 

Who Should We Name as Guardian (or Power of Attorney or Health Care Proxy) for Our Special Needs Child?

February 6, 2009

As your special needs child turns 18, you need to name advocates to act as her voice on financial, legal, and health care matters.  See my post on the need for a guardianship or a Durable Power of Attorney and Health Care Proxy. 

The big question is who to name to act as the agent under these different documents.  While your first impulse will of course be to name yourself – after all, you’ve been acting in this role since she was born – you may want to give this more thought. 

Some parents – and adult children – prefer to give authority over finances and legal affairs to someone other than the parents, perhaps an aunt, uncle, cousin, or even a lawyer.  Sometimes letting someone else handle the money – having another person say “no” to requests – takes the pressure out of the family relationship and lets parents and kids just enjoy each other.  Many families do, however, prefer to keep health care decisions within the family unit. 

Oh My Gosh, My Special Needs Child is About to Become a Legal Adult!

February 5, 2009

Knowing that your special needs child is about to become “of majority age” can strike fear in the heart.  If you doubt your child’s ability to make her own financial, legal, and health care decisions, there are a few things you need to do before she turns 18.  (If she is already 18 or older, it’s not too late, it’s just best to do these things earlier.)

Here is a scenario: Your 18 year old child is on an outing with her Asberger’s social support group, has an accident, and goes to the emergency room.  Now that she is 18, even though you have been her voice and advocate her entire life, the ER staff cannot take orders from you if you don’t have certain legal documents in place

If your child is able to discuss these matters with you (in legal terms, we call this “competency”), then have a discussion (or a few) about having her sign a Durable Power of Attorney and a Health Care Proxy.  These documents will allow someone to act as her surrogate, primarily during times when she can’t make her own decisions.  When she is able to, she is in the driver’s seat.  The Durable Power of Attorney would allow you or another adult to handle her financial and legal affairs, and the Health Care Proxy would let someone else make health care decisions.  

For a child who is not able to understand and sign such documents, you will need to pursue a guardianship.  This is a court proceeding. When everyone in the family agrees on who should act as guardian, it is a straight-forward process.