As a legal guardian, you are responsible for the care of another. If the person is an adult, these needs include day-to-day, healthcare needs, and financial or home responsibilities. Often, when an adult becomes disabled somehow, a judge appoints a legal guardian to ensure someone meets their needs. Learn about what a legal guardianship is and what alternatives are available.
A Judge Declares a Legal Guardianship
There is a court process designed to find an appropriate guardian for a person in need of care. The court process starts with a petition for guardianship from someone who sees the need. This person may be a son or daughter who has noticed a mental decline in a parent. Sometimes, the process starts because an accident or medical event leaves someone in need of care.
What Types of Guardians are There?
A legal guardian is a financial guardian, a daily care guardian, or a general guardian. A general guardian cares for the day-to-day needs and financial needs of the individual.
Taking care of someone who is disabled often requires hiring a caregiver who can help the person with their daily activities of life. Guardians also often hire attorneys or others to handle the financial matters of an estate.
Do Disabled Adults Always Have Guardians?
Disabled adults have challenges that healthy individuals do not struggle with. Often, a person can have many difficulties and challenges but manage their day-to-day life activities without appearing in court for a guardianship hearing.
When someone needs help but has friends or family who step in and give support, they may not need a court-appointed guardian. For example, an older woman may let her daughter come each day to bring dinner while her son mows the grass and checks her environment for problems. A paraplegic young adult may have parents willing to give round-the-clock care. In these cases, the person has people who care and are eager to help without court intervention.
There are also ways to prevent or lessen the chances of needing a guardian in the future. For example, working with an estate planning attorney, individuals often plan for alternatives to guardianship.
Planning ahead for possible incompetency in your older years is often an excellent way to prevent the embarrassment of a court date determining whether you can care for yourself.
Alternatives to Legal Guardians
Durable Power of Attorney and Health Care Power of Attorney
If you don’t plan for a day you can’t care for yourself, your family may spend significant effort, time, and money to pursue a guardian for you later in court.
For example, if you develop Alzheimer’s but still retain all authority for your bank accounts, your estate, and your day-to-day activities. If you don’t plan ahead, you may refuse to let others help when you desperately need their help. If you are disabled without understanding your situation, the court may intervene and give your decision-making rights to someone else. The Court might even appoint a guardian you would not have wanted.
If you are an adult able to understand what you are signing, you can have an attorney draw up a durable power of attorney and healthcare power of attorney. These legal documents give authority to the person you choose. The individual you select may then legally handle your financial, medical, or other matters as needed.
Living Wills and Advance Directives
If you know that some medical procedures are not what you would desire for yourself, you can work with an attorney to draw up advance directives and a living will. These documents give instructions to medical personnel about when to perform certain types of medical treatments. These treatments can include DNR (do not resuscitate), intubation, respirators, dialysis, tube-feeding, and more.
Executing these legal directives gives you the right to choose what will happen should you need life-saving medical care.
If you have benefits from Social Security, Supplemental Security Income, or Veteran’s Benefits, another person may manage your benefits for you without a court-appointed guardianship in place. You may deem another person responsible for your benefit checks each month. Social services may also step in and help another person choose to manage your income. The person who manages your income from social security is called your representative payee.
Joint Bank Accounts
Having a joint bank account that requires both signatures for withdrawals is a way for a disabled adult to manage money with oversight. The court or a social services worker may set this up.
Special Needs Trusts
A special needs trust is a bit like a family business that holds money or assets for someone who is disabled. This trust helps the person still qualify for government benefits. If the funds or assets were in their own name, they might have too many financial resources to be eligible for the help they need. Speak with an experienced estate planning attorney to set up the legal framework for a special needs trust.
Home Health Care
Home health care agencies assist people with activities of daily living. For example, a son or daughter may hire an agency to care for dressing, bathing, cooking, and cleaning. In addition, they might employ a financial accountant to manage the parent’s finances.
Finding the Support You Need
A guardianship is a court-appointed individual that a disabled adult does not choose on their own. Having community or family support as a disabled adult can make all the difference in whether you need a court to appoint a guardian or not. As long as someone is helping in the ways you need help, the court or social services do not need to intervene.
Make Plans While You Are Able
In addition, you can plan for possible future disability by using legal planning tools such as power of attorney agreements. When you plan, you choose the person you want to make decisions if you become incapable.
With a living will or advance directives in place, you may choose what types of healthcare interventions you allow.
We Can Help
At Hopler, Wilms, and Hanna, we want to help you make plans so that you stay in control of your own choices as you age. Our award-winning estate planning attorneys can work with you to make plans for your or another disabled adult’s future. Contact us to set up an initial consultation and find out how we can help. Go ahead and make plans now so that you are ready for whatever may come.