Individuals with disabilities often struggle to gain independence from a guardian or limiting living situation. Well-meaning family may worsen the situation by thinking they know what is best for a disabled adult. However, no matter the type of disability, we each have the right to live with as much freedom as our circumstances allow. There is a popular movement toward providing more rights and resources for those with disabilities.
Learn more about how you can help disabled adults in your life thrive.
Disability Statistics in North Carolina
Many conditions can cause someone to need help from others. Almost 27% of North Carolinians have some type of disability, ranging from cognition to physical impairments.
To get an idea of the disabilities individuals face, check out this percent breakdown of North Carolinians with disability:
- 14.0% Mobility: serious difficulty walking or climbing stairs
- 11.2% Cognition: serious difficulty concentrating, remembering, or making decisions
- 6.9% Independent living: Difficulty doing errands alone, such as visiting a doctor’s office
- 6.7% Hearing: Deafness or severe difficulty hearing
- 4.4% Vision: Blind or severe difficulty seeing, even when wearing glasses
- 4.1% Self-care: Difficulty dressing or bathing (1)
While some of these conditions are limiting, it is still possible for many disabled adults to live on their own. However, some degrees of disability may require a guardian of some type. On the other hand, “Not all vulnerable adults need guardianship. Guardianship can take away people’s right to make the most basic decisions for themselves—such as where they will live and what they will do in the course of a day. Before pursuing guardianship, consider less restrictive alternatives.” (2)
Instead of petitioning for guardianship, a concerned individual can often find community resources, family, or friends to help out. There are many organizations whose purpose is to help disabled adults live their life as independently as possible. You can read more about disability rights and find many community resources at DisabilityRightsNC.org
Keep Finances Safe
A joint bank account can allow you to monitor and require a sign-off on any withdrawals or checks. Different banks offer ways to set accounts up like this. Check with a few banks to find the best setup for your situation.
A living trust is a legal framework that holds assets and accounts for someone. The legal requirements for withdrawals can limit unnecessary spending. In addition, the money is not in the disabled person’s name any longer, so this arrangement often allows a disabled individual to qualify for Medicaid help if needed.
Special Needs Trust
A special needs trust, also called a 3rd party trust, is set up expressly for someone disabled. It provides income each month that does not exceed governmental income limits for benefits.
Representative Payee for Social Security or a Fiduciary for Veteran’s Benefits
This person receives the government check or deposit each month to care for the disabled person. This is a good way to make sure the income is taking care of the disabled person and not going toward financial exploitation or inappropriate expenses.
Keep Personal Rights Intact
Durable General Power of Attorney
A durable general power of attorney is a legal document allowing someone you choose to conduct all business on your behalf. This is a type of planning document that lets you choose someone to care for you before you lose the ability to make good decisions. There may be no need for guardianship petitions if the POA cares for a disabled person.
Health Care Power of Attorney
A Health Care Power of Attorney is a legal document giving someone the right to make healthcare decisions. However, the appointed person does not have the right to overturn decisions covered in your living will or advanced directives.
Living Will or Advance Directives
These are legal documents stating your wishes for medical treatments that are acceptable to you. You can make decisions about a diverse group of procedures such as DNR, dialysis, food tubes, breathing assistance such as a respirator, intubation, etc. You can also make an advance instruction for mental health treatment.that indicates acceptable treatment and care for mental health conditions.
The court system in North Carolina hears guardianship petitions for a disabled adult when needed. Often relatives petition for custody of an older adult due to advanced age or poor health. However, young people are not immune to events that require guardianship either. Disabilities caused by a hereditary condition, a developed mental disorder, a medical event, injury, or even a drug overdose also cause limiting disabilities.
There are different kinds of guardianships.
- Guardian of the person: carries out duties to care for the individual’s day-to-day life and custody.
- Guardian of the estate: manages the property, estate, and business affairs of a disabled person.
- General guardian: takes on both the care of the person and the estate
A limited guardianship allows as much freedom as possible. In this type of guardianship, the disabled individual is helped only in the areas where they need assistance.
These limited areas could include daily care such as providing dinner each evening or doing grocery shopping each week. It could be that your aunt needs help only with managing her monthly bills. Perhaps a neighbor needs someone to hire home helpers for her yard and housekeeping. Some elderly individuals may need help making and keeping appointments with their doctors.
Perhaps a younger person who cannot drive needs a limited guardian for certain kinds of trips out of town. On the other hand, someone with autism may only need help communicating clearly in specific stressful situations.
A limited guardianship is “tailored to fit the individual in the areas in which assistance with decision-making is needed.” (2) Disabled individuals deserve the right to make decisions whether others agree with them or not. We all need the freedom to make our life’s decisions.
Preparation is Key
Often, legal documents like power of attorneys and advance directives such as a living will prevent you from ending up in a guardianship hearing someday. With the proper plans in place, the court will not need to make these decisions for you.
If you care for a disabled person or make decisions about their future, remember to err on the side of giving as much decision-making power as possible to the individual. For example, joint bank accounts and setting up a trust can provide more freedom to live independently.
We Can Help
If you need help with any guardianship issue, we are here to help. Our experienced guardianship attorneys can advise you on the best plan for your unique situation. We understand the need for autonomy but also safety. Contact us for a free initial consultation to find out more about how we can help.