Planning for Special Needs
If you have a child with special needs or are taking care of a person with special needs, you face further challenges to planning for their care and protection. There are many details from thinking about whether they will need continuing care over the age of 18, to establishing Adult Guardianship once they have reached age 18, to ensuring that they do not own assets above the asset threshold so that they can qualify for government programs (even if you are actually not in need of the government assistance from a monetary perspective, some programs that could enhance the life of the person with special needs are only available to those who “have a Medicaid card”), etc.
About Adult Guardianship
- To have guardianship over someone over the age of 18, a court needs to grant it.
- The court decides on the basis that the person doesn’t have the capacity to make health/medical, personal care, educational, financial, and safety decisions.
- The standard for having capacity is pretty low. The state cannot keep people from making bad decisions…. so just because decisions are/will be bad and not in the interest of the individual, isn’t enough for the court to appoint a guardian over the individual.
- The court decides this on the basis of evidence, the most important piece of which is the doctors’ certifications of the individual’s incapacity. In addition, you can include affidavits from teachers at school or anyone who has expertise on which to base an opinion about the person’s capacity.
- The types of guardianship are:
- Full guardianship – gives control and all decision making power to the guardian.
- Limited guardianship – gives control and power for certain decisions to the guardian.
- Guardianship of the Person – gives control over medical and personal decisions, but doesn’t give control and decision making power over finances.
Guardianship of the Estate, aka Conservator – only gives control and decision making power over finances.
Guardianship for Medical Decisions – gives control and decision making power over medical decisions. This is used when somebody is incapacitated but needs medical decisions made and there is disagreement among interested parties, or the hospital wants somebody to be appointed by the court. For a non-relative, such as a good friend, to serve as the medical guardian, a court appointment is necessary.
- The court will appoint an attorney to represent the interests of the individual alleged to have diminished capacity. If the individual wants to fight it, wants their appointed attorney to fight the finding of incapacity, it can be harder to show incapacity.
- A Power of Attorney for Medical Care or a Healthcare Proxy is not effective unless the person is unable to communicate his health wishes. While an individual always has a right to include others in his or her medical care, the individual also has the right to revoke the permission and refuse to include anyone whenever he or she wants at will.
- The above guardianships can be dissolved by the court upon an application showing capacity has been restored.
Resources to Check Out
- The Community Health Law Project (www.chlp.org).
org (maybe geographically specific).
If you are interested in learning more and receiving our Guide to Planning for People with Special Needs, please contact us.