Guardianship— Is it Right For Your Exceptional Needs Family?

By Ryan F. Platt, MBA, ChFC, ChSNC, CFBS

THE QUESTION OF GUARDIANSHIP USUALLY OCCURS AROUND THE 18TH BIRTHDAY SINCE, IN MOST STATES, THE LEGAL AGE OF MAJORITY IS 18. THIS MEANS AN INDIVIDUAL WHO ATTAINS THE AGE OF 18 NO LONGER NEEDS PARENTAL CONSENT. THIS LACK OF PARENTAL CONSENT EQUATES TO A LACK OF PARENTAL PROTECTION, AS WELL.

Guardianship is necessary for an individual who does not understand the impact of their decisions and may never develop that ability. The two most common areas to consider are healthcare decisions and money decisions. The questions to ask are:

• Can my child manage their money?

• Can my child understand the impact of healthcare decisions?

• Can my child manage their own Individualized Education Program (IEP)? (If the parent is not the Guardian, then at 18 years old, the school system does not have to invite you to your child’s IEP meeting)

• Do you need to continue to protect your child because of their naiveté?

If your answers to the first three questions are NO, and your answer to the last question is YES, then Guardianship may be the right decision for your child.

Guardianship can come in several varieties:

• Guardian of the Person—making the day-to-day decisions

• Guardianship of the Estate—making the money decisions

• General Guardianship—combines Guardian of the Person and Guardian of the Estate

• Limited Guardianship—only in certain areas of your child’s life will you be their Guardian. This arrangement allows your child to keep some of their rights (i.e., driving privileges).

The Guardianship Process begins by visiting your local clerk of courts. It is with the clerk of courts that you will complete the application and assemble the proper paperwork for a Guardianship hearing to be scheduled. You should begin this process five to six months before your child reaches the age of 18.

If you are not prepared to declare your child Guardianship ready, but you still want to help them in certain situations, you should consider Powers of Attorney. A Power of Attorney is a written document in which one person (your child) appoints another person (you) to act on their behalf as their agent.

You should consider two types of Powers of Attorney:

• A Durable Power of Attorney will allow the agent (you) to help with financial decisions in the event your child is in a situation where they are unable to make a decision.

• A Health Care Power of Attorney allows your child to empower you with decisions regarding their healthcare or medical treatment. It becomes active when they are unable to make decisions or unable to communicate their intentions regarding their treatment.

For the Power of Attorney to be legally enforceable, your child must have an understanding of the document they are signing, and the fact they are giving you legal right to act on their behalf in the event they need your help sometime in the future. If they do not have the ability to understand they are giving you this right, the Power of Attorney may not be the correct option; Guardianship would once again be a consideration.

Another alternative to Guardianship is Supported Decision Making. Supported Decision Making is the idea that individuals with Intellectual and Developmental Disabilities should make their own decisions with the support of a team of people. Supported Decision Making allows the individual with legal capacity to make their own decisions. They will use a team of people, almost like a board of advisors, to help them make these decisions.

This team should consist of family members and professionals such as an attorney, financial planner, and social services expert. The team does not have any legal standing or responsibility; they are used as a sounding board. The individual with the diagnosis and their team will enter into an agreement that formalizes this relationship. Support- ed Decision Making is growing in popularity in the United States. However, it is only legally recognized in a handful of states.

Guardianship is an important decision and should be discussed with your loved one (if they have the capacity) before moving forward.

Resource https://supporteddecisions.org/about-supported-decision-making/

Ryan F. Platt, MBA, ChFC, ChSNC, CFBS, is a registered representative of and offers securities, investment advisory, and financial planning through MML Investors Services, LLC, Member SIPC. Securities and investment advisory services offered through qualified registered representatives of MML Investors Services, LLC, Member SIPC. A Special Needs Plan is not a subsidiary or affiliate of MML Investors Services, LLC or its affiliated companies. This article is not a recommendation or endorsement of any products.

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