When a child turns 18, they are considered an adult. With this title comes the responsibility to make life decisions concerning their medical treatment, finances and life. These decisions require that a person be competent in order to understand what decision they are making and the possible outcomes or consequences of that decision. This newfound adulthood raises even more concern for those with children who have special needs. It can be tough to muddle through the waters of special needs planning.
The topic of guardianship, the legal proceeding in which someone asks the court to find that a person is unable to manage his or her affairs effectively, presents the need for one to satisfy this important role. There are different types of guardianship depending on the persons needs. A guardian of the person can make decisions about their healthcare, housing, food, clothing and other subjects that affect the person. Additionally, a guardian of the property makes decisions concerning a person’s money, income, property, public benefits and other financial matters. Because the guardian makes all the decisions as ordered by the court, the individual under the guardianship loses a great deal of independence. He or she will no longer have the authority to make decisions about his or her personal life or property because that authority has been delegated to the guardian.
Although guardianship is a serious issue, there are some alternatives to ensuring that there is a good balance of support and independence. Special needs trusts, family guidance, assisted/ supported living services, durable power of attorney and a financial representative are all beneficial alternative guardianship methods.
1. Special needs trusts:
A special needs trust (SNT) is a trust that will preserve the beneficiary’s eligibility for needs-based government benefits such as Medicaid and Supplemental Security Income (SSI). Because the beneficiary does not own the assets in the trust, he or she can remain eligible for benefit programs that have an asset limit. As a general rule, the trustee will supplement the beneficiary’s government benefits but not replace them. Examples of supplemental needs are costs for sitters, companions, and dental or medical expenses not covered by Medicare or Medicaid.
2. Family guidance:
If a family member is available to provide advice and help an individual with special needs make a decision voluntarily, there may be no need for a guardianship. However, if the person is too easily influenced, there is a potential for that person to be taken advantage of and guardianship may be appropriate.
3. Assisted/ supported living services:
If there are only a few areas where the person needs assistance, there may be programs, providers, or professionals who can assist with just those tasks. For example, if transportation is an issue, there are services available to take the person to and from medical appointments. There are various levels of services available to meet varying levels of need. Usually a case manager can help coordinate services for the person.
4. Durable power of attorney:
If the person has periods where he/she would be considered competent, they can enter into a power of attorney which names one particular person to make certain types of decisions on his behalf.
5. Financial representative:
Representative payees or joint ownership of bank accounts to help the person manage his or her finances.
It is important to remember that laws governing guardianship can vary from state to state. The information in this article is general and not intended to present the rules for any particular state. Prior to seeking guardianship in your state, be sure to check the applicable laws or consult with a special needs planning attorney specializing in guardianship issues.
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