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Estate Planning - FAQ: Guardianship for people with disabilities

Q: Does every person with a disability need a guardian?

A: No, every person with a disability does not need a guardian. This is a determination that must be made taking into account the individual's strengths and weaknesses. The following are some questions to consider:

  • Does he know the value of money?
  • Is he able to appropriately manage large sums of money?
  • Would he be vulnerable to being taken advantage of in financial transactions?
  • Is he able to manage a checking account and make cash purchases?
  • Can he choose a safe and appropriate living arrangement for himself?
  • Is he able to determine how to spend his leisure time, as well as what type of educational, vocational or day programming would be appropriate?
  • Can he travel safely, independently?
  • Is he able to make his own doctor's appointments and keep them?
  • Does he understand the need for routine medical care?
  • Would he be able to weigh the risks and benefits of a proposed medical procedure?

Q: How do I know if my child needs a guardian?

A: If your child is limited in the areas listed above, she is likely to need some form of surrogate decision making as an adult. Sometimes a mildly impaired individual can sign a power of attorney and health care proxy, voluntarily giving decision making authority to you. However, if your child lacks the mental capacity to fully understand the impact of signing a power of attorney or health care proxy, it will be necessary to petition the appropriate Court for guardianship to continue to provide needed assistance.

Q: My adult child is 35 and has always lived with me. Is it really necessary to become her guardian? Is it too late?

A: All adults over the age of 18 are considered legally competent to manage their own affairs. If you determine that she lacks the ability to manage her affairs, including signing and understanding legal documents, then you should consider guardianship. It is never too late to initiate the process. However, because parental authority terminates when a child becomes 18, the best time to move forward on guardianship is when the child is 16 or 17.

Q: What are the responsibilities of a guardian?

A: A guardian is responsible for ensuring that the person with a disability's needs are met and that they are not at risk of harm. This includes: ensuring that he has a safe place to live with an appropriate level of assistance, some form of employment, education or day programming, recreational opportunities, necessary medical care, and advocating for him should the need arise. If your guardianship extends to his property, then you must also ensure that his funds are prudently managed and expanded for his needs. If the person with a disability is receiving, or expected to receive, SSI or Medicaid then all funds should be held in a supplemental needs trust (SNT), rather than a guardianship account.

Q: Would I have to let my son move back in with me?

A: No, being your son's guardian does not mean you must let him live with you. It does mean that you must ensure that he has an appropriate place to live.

Q: Would I have to pay my daughter's phone bill or credit card bill?

A: No, being your daughter's guardian does not obligate you to satisfy her debts. You may need to communicate with creditors on her behalf and it may be appropriate to contract with a care provider or case manager to provide training regarding proper use of the phone and avoiding racking up credit card debt.

Q: Are guardians allowed to make decisions about terminating life support?

A: Yes, if specifically granted by the Court, guardians may make decisions regarding end of life care. Currently, the law allows guardians appointed under Article 17-A of the Surrogate's Court Procedure Act to make such decisions only if the person with a disability is mentally retarded.

Q: Why does New York State have two guardianship laws? Which one would apply?

A: New York State offers two options for petitioning for guardianship. Surrogate's Court Procedure Act, Article 17-A applies only to persons with developmental disabilities (i.e. mental retardation, autism, cerebral palsy, etc) which occurred prior to the age of 22. Mental Hygiene Law Article 81 applies to everyone else: the elderly, people with mental illness, stroke victims, patients in comas, the traumatically brain injured, etc. The standards for obtaining guardianship vary under each of these laws and the procedural requirements are different. It is important to consult with a knowledgeable attorney to determine which of these laws would best meet your needs.

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