Sunday, August 28, 2011 Protecting People with Special Needs: Guardianship of Young Adults
Most parents are conflicted when their children reach their 18th birthday. For many families, that means their child will soon be leaving home for college, a new job, or the military. For parents of children with developmental disabilities, it can be very scary when that child turns 18, because the law presumes an 18-year-old is an adult with the legal rights and responsibilities that come with adulthood. When a child turns18, the parent no longer has the legal authority to make decisions for that child.
Joshua, a good-looking young man with a developmental disability, turned 18 six months ago. Josh is friendly and outgoing. They say he never met a stranger. Josh, who functions intellectually on the level of a second grader, has been known to give his lunch money away on more than one occasion. Josh does not tell his parents when he is feeling sick, and once cut his arm and used the wall to stop the bleeding. His parents came to me because they are conflicted about whether to seek guardianship of Josh.
Guardianship is a legal relationship created by a court. The guardian has the legal authority to make decisions about the healthcare and living arrangements of another person, called a ward. The guardian also has the duty to look out for the welfare of the ward. The relationship is very much like that of parent and child, where the law presumes that the ward is not able to make his or her own decisions about his or her healthcare or living arrangements.
Whether to seek a guardianship can be a difficult decision because parents want their children to gain independence, to learn to function in the world on their own and to make their own decisions. When someone becomes a ward, they lose the legal ability to make healthcare decisions, to choose where to live, to enter into contracts, and to marry.
Guardianship in Georgia is granted if the adult “lacks significant capacity to make or communicate significant responsible decisions” about his or her health or safety. In order to decide whether to grant a guardianship, the court reviews a petition filed by the proposed guardian, appoints a professional to evaluate the proposed ward, and then holds a hearing in the courthouse to gather evidence about the decision-making ability of the proposed ward.
Josh’s parents ultimately decided that they need to become Josh’s guardians in order to continue to make decisions about his healthcare and where he lives, but also to ensure that he would not be enticed into signing any contracts that might bind him to spending money he doesn’t have. Although they would like for Josh to get married some day, I explained that they can petition the court if and when Josh meets the right person and they believe he is mature enough to marry.
Please give our office a call if you have questions about whether you might need to seek guardianship of a young adult.
Next week, we’ll talk about when guardianship of minors, when that might be necessary and how to choose guardians for your minor children.
Sunday, July 31, 2011 Caring for Children with Special Needs: Combating Autism Reauthorization Act of 2011
Caring for Children with Special Needs
Combating Autism Reauthorization Act of 2011
You can’t turn on the television or radio without hearing about the negotiations – or lack of negotiations- in Congress regarding the looming budget crisis. We are all concerned about whether our elected representatives in Washington can come to a compromise that will help the country out of the current debt crisis. Of great concern to those of us who work with families who have family members with special needs is whether, and how, the few programs left to support these families will be affected.
Assuming Congress gets through these negotiations and gets back to work on other important issues, Congress has the opportunity to address a significant issue that the United States faces today. That issue is that the number of persons diagnosed as being on the Autism spectrum is increasing at an alarming rate. It is estimated that 1.5 million Americans are currently on the Autism spectrum. That number is expected to increase by 10-17% annually.
A growing concern is that the number of autistic children entering adulthood is also increasing rapidly. By 2023, the number of autistic children entering adulthood is estimated to be 380,000. The cost of care for these adults is said to be around $27 million, or about the budget of the state of Tennessee.
On August 3, 2011, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) is scheduled to meet for hearings on the Reauthorization of the Combating Autism Act, originally passed in 2006. The Combating Autism Act allocated $950 million dollars over the five year period for the Centers for Disease Control (CDC), National Institutes of Health (NIH), and other governmental agencies to conduct research on the autism spectrum. The Act required the Director of NIH to develop and implement a strategic plan for autism research. If the Act is not reauthorized by September 30, 2011, the federal commitment will disappear.
The current bill, named the Combating Autism Reauthorization Act (CARA), would allocate the federal funding of $1billion and create a National Institute of Spectrum Disorders Research within the NIH.
If CARA is not passed, research on the spectrum will likely be thrown into disorder. We cannot afford to let this bill die. Research into the reasons for the disorders on the spectrum, and especially research into treatment and therapies, is crucial.
If you would like to find out more about CARA, and how you might be able to help make sure this Act is passed, see http://www.autismvotes.org/site/c.frKNI3PCImE/b.6376831/k.ACFC/CARA.htm.
Sunday, July 10, 2011 Planning For a Loved One With Special Needs
If the last few years have taught us anything, it is that life is not predictable. The economic crash seemed to come out of nowhere. The weather appears to be totally weird and unpredictable, with tornadoes and floods occurring with fierce and dangerous intensity.
So, too, our health and physical wellbeing are not entirely predictable. Despite our best efforts to eat healthy food and exercise regularly, we can have a car accident or suffer a bad reaction to medication and become ill or disabled.
For some of us, our financial resources and health insurance may not be enough to cover our care needs. When that happens, we sometimes have to seek governmental assistance to provide for our healthcare.
Many of my clients had no idea they would end up depending on Supplemental Security Insurance (SSI) or Medicaid for assistance, but those progams can be a lifeline for those with disabilities and longterm care needs.
How can we plan for our loved ones and family members who are on governmental assistance programs? How can we provide for their needs without jeopardizing their public benefits programs?
One way is to establish a special needs trust for the benefit of the person with a disability. A special – or supplemental needs trust, as I’ll call it- is an entity established to hold assets so that those assets are available for the needs of the person with a disability that are not provided by the governmental benefit. The person with the disability is not the trustee, does not own the assets, and cannot control the assets, so the assets aren’t counted for purposes of qualifying for benefits.
SSI and Medicaid generally restrict the recipient of those programs from having more than about $2,000 in assets, but the assets in the trust aren’t calculated in that $2,000. Most of the time, the trust is established by a parent or grandparent, but If the assets did not belong to the person with a disability to begin with, anyone can establish the supplemental needs trust and anyone can contribute assets to that trust. The trust can be the recipient of gifts or inheritance.
We’ve discussed how to choose a trustee in previous blogposts,
http://bit.ly/rfPKWc but for a supplemental needs trust I usually recommend appointing a professional trustee to manage the assets in the trust. The intricacies of public benefits programs can be daunting for most people, so even though they charge for the management, professionals with experience with supplemental needs trusts can save money in the long run.
So, even though life seems unpredictable, you can at least plan for some of the supplemental needs of your loved one with a disability.
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