Adults with developmental disabilities should live in the least restrictive, most inclusive environment possible but sometimes they need assistance whether it’s financial or medical. A guardianship and conservatorship are ways to provide that assistance and there are other ways to supply needed support.
Stewart, Melvin & Frost attorney Eric Wilborn, who specializes in trusts and estates, joins us this morning to discuss financial and medical options for special needs adults.
Question: Eric, is there a standard plan for special needs adults as far as medical or financial assistance?
Eric: Every situation is unique. There are many options to think about. Each individual’s circumstances must be carefully considered when deciding what is right for him or her. Likewise, any legal measures should be the least restrictive needed, designed to protect individuals when necessary, and give them independence and autonomy when possible.
The most restrictive option is full, legal guardianship so you want to explore other options first.
Question: What are some options for a disabled adult who needs help with their finances?
Eric: Many of these alternatives can be tailored to give individuals as much financial independence as possible. You can set up limited or joint accounts which ensure your loved one can manage their finances but still have as much helps as they need in areas such as ordering checks and transferring funds.
An option for someone receiving Social Security Administration or Veterans Administration benefits is designating a representative payee. Children, legally incompetent adults or people temporarily or permanently incapable of managing their own benefits are required to have a representative payee. Beneficiaries may also voluntarily appoint a representative to act on their behalf. The representative payee only has authority for the funds received from the agency.
Another legal option is a financial power of attorney, where the individual grants a trusted third party the authority to take care of financial or property matters for him or her. As a spouse or parent you automatically have power of attorney. If a trust or estate is involved, a person could designate one or more people to oversee the estate or trust. This is similar to power of attorney, but applies in the specific situation of administering or managing assets that have been left to an individual with disabilities.
Question: Let’s talk about help with medical decision. What are the options there?
Eric: First, the person providing assistance will need to be on the loved ones’ medical information release forms so they can be advised of medical conditions and treatment.
Advanced Directives for Health Care are another area to be addressed. Under Georgia law, an individual can appoint someone to make decisions on their behalf if they become unable to. It’s particularly important in cases that don’t classify as emergency but there are important medical decisions to be made.
In the absence of an advanced directive, Georgia law has a list of people who qualify to make medical decisions for an incapacitated person. The order of the list is: spouse; adult child on behalf of his or her parents; parent on behalf of an adult child; adult sibling; grandparent on behalf a grandchild; adult grandchild on behalf of a grandparent; or any adult niece, nephew, aunt or uncle of a patient.
Without any of those people available to give consent on the individual’s behalf, the law allows one last option: an adult friend.
Question: If the only option for a disabled adult is full guardianship, what are the steps that need to be taken?
Eric: In Georgia, full legal guardianship requires a court order and the payment of probate court hearing fees. It requires petitioning a court to declare that an individual lacks sufficient capacity to make his or her own decisions. Capacity is defined as the ability to take in information, make an informed decision and communicate that decision.
Not only does it carry a serious stigma to determine someone lacks capacity, but it also revokes that person’s ability to make decisions about medical treatment and where to live, as well as the right to marry, divorce, or enter contracts. The process can be lengthy and expensive. Also, it takes as much effort, time and cost to reverse guardianship. It’s best to explore less restrictive options first.