Special Needs Parenting :: Why Guardianship or Alternatives to Guardianship Might Be Necessary
When we meet people at Special Needs Resource Fairs, we are often asked by parents why they may need guardianship of their children with special needs. The short answer is that once your child turns 18, things you did for him or her the day before the 18th birthday cannot legally be done from that birthday forward.
For example, prior to age 18, parents make decisions about where their child will live, what medical treatment is done, and how money your child may have will be spent. In the State of Texas, children become adults at age 18 and, whether or not they are capable of making such decisions, in the eyes of the law, they are solely responsible for their life decisions. Without Guardianship or Alternatives to Guardianship in place, doctors can refuse to perform medical procedures parents may deem necessary and, financially, your adult child can decide how his or her money is spent. They can easily be taken advantage of by those who may be quick to take advantage of them.
Here is an overview of Guardianship (full and partial) and also some Alternatives to Guardianship which should help clarify the question.
Guardianship
Guardianship can be full or partial. Which one is right for your family depends on the proposed Ward's capabilities in making life decisions. Guardianship is not permanent; in fact, it must be renewed each year by filing an Annual Condition and Well Being of a Ward report. Some parents opt for full Guardianship initially and then may give some or all rights back to the Ward should their capabilities and compensatory skills improve. Full Guardianship means the guardian(s) make all medical, legal, business/financial, and domicile decisions. Additionally, the Ward may lose these rights, among others: the rights to vote, marry, having a driver's license, managing, buying, or selling property, and owning a firearm or weapon. This is a partial list of the rights the Ward will lose under full Guardianship.
Partial Guardianship is a way to allow the Ward to retain certain rights; for example, the right to marry, drive, or vote while the Guardian(s) may handle medical, business, and financial decisions. Guardians can choose the rights they wish the Ward to retain and those they want to still control. Much of the decision will relate to the capabilities of the proposed Ward. Your attorney can guide your family towards the guardianship option that works best for the proposed Ward.
Alternatives to Guardianship
Some Alternatives to Guardianship may be a suitable choice for those families wanting a less restrictive option. Here are a few alternatives that may work for your family member. Keep in mind that for many of these options, your family member must have the capacity to understand the legal document he or she will be signing.
Power of Attorney: A Power of Attorney authorizes someone to act and make business and financial decisions on behalf of someone else. There are different types of powers of attorney but, in this case, a statutory, or durable, power of attorney is a document which will allow someone to access bank accounts and make decisions about how a person's money is spent. The person signing this document must have the capacity to understand the legal document they will be signing.
Medical Power of Attorney: A Medical Power of Attorney allows a chosen agent to make any and all health care decisions when the individual does not have the capability to make these decisions. Having a signed Medical Power of Attorney allows for collaboration between medical professionals and family members. The person signing this document must have the capacity to understand the legal document they will be signing.
HIPAA: HIPAA stands for Health Insurance Portability and Accountability Act and addresses health privacy of an individual. It protects a patient's sensitive health information from being disclosed without the patient's knowledge or consent. Without this document, family members cannot access patient health information from doctors or hospitals. The person signing this document must have the capacity to understand the legal document they will be signing.
Supported Decision Making Agreement: This document is a fairly new Alternative to Guardianship. It allows parents to attend meetings in school or at a doctor's office, etc. and explain what the meeting is about; however, it does not allow parents to make decisions for their child. This might be an option for those individuals who wish to self-advocate but still need assistance understanding meetings or medical procedures. The Supported Decision Making Agreement helps the individual understand options, responsibilities, and consequences of their decisions. It is important to understand that the individual must make these decisions independently and not have their parent make the decision for him or her.
Whatever your decision about Guardianship or Alternatives to Guardianship, the most important consideration is how to best take care of your family member with Special Needs. Reach out to attorney Boyd Handley, father of an adult daughter with Special Needs, to help navigate this important question. 281.703.3616