Guardianship
Understanding the importance and the implications of naming a guardian in your documents and applying for guardianship of your adult child.
TABLE OF CONTENTS
Choosing a guardian for an adult with special needs
As a parent, it is very difficult to think about not being there to provide the love and care your child requires. However, should the unthinkable happen and you are unable to be there to care for them, who is best suited to step in and be their guardian? Making the task even more difficult, many of those we would consider our top choices- aging parents or siblings with children of their own - may be less than perfect choices.
A guardian is not empowered by your legal documents but is appointed in the court system. Although difficult, naming a guardian in your legal documents is critical, as it will provide your direct input for the court to consider in the guardianship appointment. While guardianship ceases to be an issue for typical children as they reach adulthood (age 18, in most states), for individuals with special needs the role of guardian (or alternatives to guardianship) takes on even greater importance.
When a child reaches age 18, if appropriate, their parent (or parents) must apply for legal guardianship to be able to make decisions on behalf of their adult child.
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FAQs about guardianship
What is Guardianship?
Guardianship is a legal process that gives the guardian permission to take care of and make decisions for an incapacitated adult. An incapacitated person is someone with a clinically diagnosed condition that keeps them from being able to make or communicate decisions about their physical health, safety, or care. An incapacitated adult may also called a protected person or in legal terms, a ward. (Source: Mass.gov)
What are the types of Guardianship?
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A guardian of the person is responsible for monitoring the care of the person with disabilities, also called the protected person. The guardian need not use their own money for the protected person’s expenses, provide daily supervision of them or even live with the protected person. The guardian must attempt to ensure, however, that the protected person is receiving proper care, housing, and supervision, and the guardian is responsible for decisions regarding most medical care, education, vocational planning, and end-of-life decisions.
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A guardian of the estate or conservatorship should be considered for persons with disabilities who are unable to manage their finances and have income from sources other than benefits checks, or have other assets and/or property. The conservator is responsible for handling the protected person’s financial resources, but is not personally financially responsible for the protected person from their own resources. In most jurisdictions, the conservator must file an annual accounting of the protected person’s funds with the court.
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A limited guardianship may apply to only certain areas of decision making, such as decisions about medical treatment, in order to allow the protected person to continue making their own decisions in all other areas. The benefit of a limited guardianship is that the guardian’s responsibilities can be tailored to fit the protected person’s special needs in the least restrictive manner. Further, under a limited guardianship, the protected person has not been declared incompetent.
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A temporary guardian or conservator may be appointed by the court in an emergency situation when certain decisions must be made immediately. In many states, a permanent guardianship or conservatorship must be requested along with the temporary appointment. The duration of a temporary appointment is dictated by state law, generally up to 90 days. There may also be an option to name one person as a temporary guardian and then have another person(s) serve as the permanent guardian.
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A successor guardian should be named in your (the parent’s) legal documents, such as your will to make it easier for the next person to step into their role as your successor guardian. You may want to consider a co-guardianship during your lifetime with the person you would like to be your successor guardian.
How long do the responsibilities of a guardian last?
What are the financial responsibilities of a guardian?
Planning pointer
Coordinate Guardianship and Medicaid
Planning Pointer
If you also have the ability to access government benefits to be the adult family care provider under Medicaid provisions, you will not be able to be your child’s guardian. Careful consideration should be given when choosing the parent to serve as guardian while the other parent serves as the Medicaid provider.
Key roles and responsibilities of a guardian
- Ensure the adult’s living situation is safe and appropriate (least restrictive environment)
- Provide for the adult’s everyday basic needs and safety
- Make ordinary medical care decisions and arrange for needed treatment
- Provide for the social, educational, recreational and future needs of the adult
- Apply for health insurance and other benefits, if needed
- Advocate for the adult’s legal rights and independence
Alternatives to Guardianship
If an individual with a disability can make some but not all decisions, one or more of the alternatives to guardianship discussed here should be considered. Courts will generally favor placing individuals in the Least Restrictive Environment needed and the following alternatives to guardianship are listed from least restrictive to most restrictive:
- 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 authorizing the bank to send certain sums of money on a regular basis to a specified 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 if they are receiving SSI benefits.
10 FAQS ABOUT GUARDIANSHIP
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When are guardianship or conservatorship appropriate?
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Type of Decision -e.g., medical or involving a large sum of money |
Individual's Ability to Receive, Evaluate and Communicate Relevant Information |
Possible Action to Take |
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High Risk |
High Capacity |
Accept the individual's right to make their own decisions. Explore supported decision making (SDM). |
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High Risk |
Low Capacity |
Legal intervention indicated- e.g., guardianship or conservatorship |
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High Risk |
Moderate Capacity |
Supported decision making indicated; talk with the individual to reduce resistance, reduce risk and increase their capacity to understand |
How and when do you ask someone to be a guardian?
Planning for guardianship is a critical legal task for all parents and even more so for parents of a person with disabilities. There should be careful consideration of family, friends and professionals in determining who would be best suited to each role in helping care for the individual as you, as parents age or when you are no longer living.
It is important for parents to have an open discussion and on-going communication with the people they wish to be involved in caring for their child in the future. An example of this may be found in the story of our own Nadworny family's planning for James' guardianship in A Talk with my Parents around Our Holiday Table.
There are many considerations to be weighed, and a potential guardian’s financial resources are amongst them. For example, a younger sister with small children may have the qualities to be an ideal successor guardian but lack the cash flow and savings that would enable her to fully take on the guardianship responsibilities. If there are sufficient resources in a special needs trust, it is possible to provide for the retirement, healthcare and other necessary expenses for this sister and enable her to take on the guardianship role.
How do you implement your plan for guardianship?
Nominate a guardian in a will. A parent may nominate someone to be guardian of their child (whether under 18 or, if disabled, 18 and over). This person will still have to be confirmed by the court after the parent’s death, but is wise to include the nomination in the will so the parent’s preference is known.
Designate a standby guardian. Most states have a process by which a parent can designate a guardian to take care of a child in the event the parent is incapacitated or has died. If the parent believes their choice of guardian will be contested by the other parent or by family members, the guardianship designation can be confirmed by the surrogate or probate court before the parent dies. Not all states have this process, but if it is available in the state in which the child lives, the parent should both nominate a guardian in their will and designate a standby guardian.
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Sources:
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The Special Needs Planning Guide: How to Prepare for Every Stage of Your Child’s Life by Cynthia R. Haddad and John W. Nadworny. Copyright © 2021 by Paul H. Brookes Publishing Co., Inc. All rights reserved.
- Massachusetts Guardianship Association
- Special Needs Alliance
Affinia Financial Group conducts business under the Special Needs Financial Planning name. Advisory services offered through Affinia Financial Group, LLC, a registered investment advisor.
Content in this material is for general information only and not intended to provide specific advice or recommendations for any individual, nor intended to be a substitute for specific individualized tax or legal advice. We suggest that you discuss your specific situation with a qualified tax or legal advisor. There is no assurance that the techniques and strategies discussed are suitable for all individuals or will yield positive outcomes.
The experiences described here may not be representative of any future experience of our clients, nor considered a recommendation of the advisor's services or abilities or indicate a favorable client experience. Individual results will vary.