Legal Issues: Guardianship & Financial Planning
Two legal issues affect many families of children with disabilities as their children approach age 18: guardianship and estate planning. Note that in this section, TXP2P is not offering specific legal or financial planning advice. Rather, we are sharing what we have learned as parents who have been involved in these matters for many years. For specific advice related to a specific situation, we recommend consulting your own attorney or financial adviser.
At age 18, our society assumes that every person can make his or her own legal, medical and financial decisions, such as agreeing to medical treatment, getting medical records, signing contracts, setting up bank accounts, etc. Your job is to consider whether your child at age 18 or after might be able to do these things on his or her own (maybe with your coaching) or if a legal arrangement is needed.
One such arrangement is guardianship. To get guardianship of your child, you will need to go before the probate court of your county and petition to become your child's guardian. You will usually have an attorney representing your interests, and your child will also (for your child, this person is called an ad litem attorney). The judge can rule that your child needs full guardianship or limited guardianship, an agreement that specifies areas where your child retains his or her rights. Guardianship must be renewed each year and you must also pay a bond each year to retain guardianship
Here is a helpful website on guardianship: http://texasguardianship.org/guardianship-basics/
Alternatives To Guardianship
It is important for parents to know that guardianship is not the ONLY option; in addition to guardianship, there are the following options:
- Power of Attorney
- Durable Power of Attorney
- Durable Power of Attorney over Health Care
- Directive to Physician
- Money Management
- Social Security Representative Payment program http://www.ssa.gov/payee/
- Trusts (see next section)
It is important to note that if an alternative is chosen, your youth should have an understanding of what the alternative implies, and parents need to understand that if the individual states “I don’t want you here at this meeting” or “I don't want you to participate in this decision,” this statement could signify a revocation of a Power of Attorney.
Parents should consult an attorney before deciding on any option. Each family and individual will need to decide what is best for your situation.
Here is the blog of a parent who decided to get Power of Attorney for her child instead of guardianship:http://leahandbrandonblog.blogspot.com/2011/03/ssi-and-power-of-attorney.html
Supported Decision Making: a new alternative to guardianship
by Megan Morgan, Policy Fellow for The Arc of Texas
During the most recent legislative session, Texas made history by becoming the first state to legally recognize supported decision-making as an alternative to guardianship for adults with disabilities. At the heart of supported decision-making is a simple premise: all people use help to make important life decisions. Supported decision making allows individuals to make their own decisions and stay in charge of their lives, while receiving any support they need to do so. To use a supported decision-making agreement, a person with a disability chooses an adult they trust to serve as their supporter. This may be someone like a parent, friend, or former teacher. It is important to know that the supporter cannot make a decision for the person with a disability. The supporter can, however, help the person with a disability understand the options, responsibilities, and consequences of their decisions. The supporter can also help the person obtain and understand information relevant to their decisions, and communicate their decisions to the appropriate people.
After an individual with a disability asks someone to be their supporter, they should explain to the supporter what types of decisions they need help making. When both parties feel ready, they will fill out a written plan called a supported decision-making agreement, which explains what decisions the supporter can help with and what information the supporter can access. Doctors, service providers, educators, and others are legally required to accept the agreement. This means that if the person with a disability so desires, their supporter can do things like talk to doctors about private medical information, discuss service coordination with providers, and participate in Individualized Education Plan (IEP) meetings.
Supported decision-making agreements are an excellent self-advocacy tool that people with disabilities can use to make their own decisions while having the support they need. Through legally recognizing supported decision-making as an alternative to guardianship, Texas is providing individuals with disabilities and their families with another option to consider as individuals transition into adulthood.
For more information on supported decision-making, visit https://www.thearcoftexas.org/alternatives-to-guardianship
If your child has or might have in the future over $2000 in assets (such as funds in a banking or savings account, trust, stocks, etc) in his or her name, he or she will not be eligible for public funding such as SSI, Medicaid and Medicaid Waivers. Some families seek an attorney's assistance or The Arc of Texas Master Pooled Trust to set up a Special Needs Trust, which generally shelters these assets so that they do not count against public funding eligibility. Here is a website on special needs trusts: http://www.thearcoftexas.org/trust/index.php#about_features