Guardianship or conservatorship documents are not easy to obtain and can take months to finalize, warns the article “Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney” from Idaho Senior Independent. However, there is a far easier way to plan for your own future and that of your special needs child.
Guardianship is a tool to solve the issue of a person who has become incapacitated or who has a disability and are unable to make personal care, legal or financial decisions. Guardianship may be called conservatorship in your state. Most states call it guardianship, and it is a legal determination of incapacity and an appointment in court for someone to step in and legally be authorized to make decisions on behalf of the incapacitated person. With a durable power of attorney for health care decisions and a general durable power of attorney for financial matters, you can achieve the same level of control, with far less time, trouble and cost. For special needs and other individuals who have the ability to participate in supported decision-making, it’s essential to consider whether guardianships are necessary and to what extent, and questioning if there are alternatives to guardianship. Learn more in the article: Britney Spears Case Offers Lessons on Guardianship
The ultimate goal of a durable power of attorney is to gain the legal authority to make decisions for the incapacitated or special needs individual which will be honored by third parties, including financial institutions and health care providers and facilities.
Most estate planning attorneys advise married couples to give each other durable power of attorney (POA) for health care and finances. As long as the couple doesn’t die at the same time or become incapacitated at the same time, the well spouse can manage the couple’s health and assets. It may also be a good idea to give his legal authority to another person, usually one of their children. If you are considering a POA for a special needs child, consider what kinds of decisions you think that your child needs to make and write some notes about the key areas of daily living that include more complex financial and healthcare decision making areas. Make a list of the support people in your special needs child’s life and who would be best suited to assist your child with various areas of decision-making so that you can identify whom to give POA.
Having an estate planning attorney create a comprehensive estate plan, which includes powers of attorney, health care powers of attorney, a last will and testament and other necessary legal documents, may seem like a lot to do. However, the alternative, pursuing guardianship or conservatorship, is just as lengthy, if not more so, and only solves one problem. A complete estate plan solves many, from care during incapacity to the distribution of assets after death.
Guardianship is needed if there is no durable health care POA for a loved one and they are unable to care for themselves or make medical decisions. This is especially true if they need some kind of housing assistance, such as assisted living or memory care. A POA permits the named person to manage the loved one’s assets including Social Security, investments and any property or vehicles they own as well as use their assets to pay for their care.
None of this can happen while going through the guardianship/conservatorship process, meaning you or someone else will have to pay the bills and time-sensitive decisions cannot be executed.
Achieving guardianship/conservatorship involves filing a petition with the court in the county where your loved one lives. In most cases, an estate planning attorney will advise the family member to obtain an appointment for their loved one with a physician who can evaluate the person’s ability to manage their life. A physician will need to provide a letter verifying the need for guardianship/conservatorship. The letter becomes part of the petition filed with the court.
The attorney will require a hearing based on the information provided.
Many courts require a different attorney to be retained to represent your loved one to avoid any conflict of interest. A different physician will, in many cases, also be required to evaluate your relative. Courts also often require an assessment by a legal “visitor,” typically a licensed social worker who independently evaluates your relative and makes recommendations.
The visitor reports their findings to the court and to the attorneys. The guardianship/conservatorship applicant pays for the visit and subsequent reports, plus any attorney fees.
All of this takes time, although an attorney can request that the court grant temporary guardianship and conservatorship.
Having legal, durable POAs for health and finances long before they will be needed is a far simpler way for you to care for loved ones, if and when they need it. Contact our team at Special Needs Family Services if you have questions about guardianship or how to use alternative methods for supported decision-making for your special needs loved one.
Reference: Idaho Senior Independent (May 1, 2023) “Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney”