Most children, with or without disabilities, continue to need parental assistance when they turn eighteen. Many parents are surprised or concerned to learn that their ability to make decisions regarding education, finances, medical care, or anything else are rights that now belong exclusively to their adult disabled child. Frequently, the parent pursues guardianship without knowing about alternatives. Other times, a parent calls because they “need” a power of attorney, having no idea that it is the child who has to agree to give the agent authority. This brief overview addresses what attorneys may consider when advising a client about guardianship and less restrictive alternatives.
This issue is timely. On June 10, 2019, The National Council on Disability, an independent federal agency that advises Congress, the President, and other federal agencies, released Turning Rights Into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities, a comprehensive research report that recommends that less restrictive alternatives be attempted prior to guardianship. In August 2017, the ABA House of Delegates adopted a resolution backing “supported decision-making,” which is being piloted in several states and the District of Columbia, has been adopted into law in Texas and Rhode Island, and has been approved by several state courts as an alternative to guardianship.
Guardianship and Powers of Attorney
Guardianship is a legal proceeding governed by state law. If the adult child is found to be legally incompetent to manage some or all of the responsibilities expected of adults (such as deciding where to live, marrying, voting, making medical decisions, etc.) or handling finances, a guardian may be appointed over the person, estate, or both. As guardianship negates the child’s ability to exercise the rights of an adult, the petition for guardianship should be tailored to the activities that the individual actually cannot perform, and not be a blanket request for guardianship.
The durable power of attorney is a document signed by one individual (called “the principal”) appointing another individual (called the “attorney-in-fact” or “agent”) to act for him or her. Powers of attorney can be roughly divided into two categories: the financial durable powers of attorney that address affairs related to daily living, such as financial matters, education, public benefits, and privacy/access to documents, and those that address health care. Powers of attorney avoid court involvement. Unlike a guardianship, powers of attorney never involve adjudication of the child as incompetent. However, it is important to meet with the child alone to ensure that he or she understands the document and trusts the person appointed to be agent.
The financial durable power of attorney can be effective either immediately or upon the occurrence of a certain event. In most cases, it is preferable to have a power of attorney effective immediately. If it is only effective upon the occurrence of another event, the parent would need proof that the event occurred before he or she is able to use the power of attorney and would need to present proof of that event whenever the power of attorney is used. Financial durable powers of attorney can give the parent authority to do a variety of things, such as opening bank accounts for their children, continuing to make educational decisions for their children, deciding where their children will live, and applying for benefits for their children, although in some cases, the particular agency, such as the Social Security Administration, will require an additional form to be signed before the parent can begin to take such actions.
A durable power of attorney for adult children who are still in school should include provisions giving the parents power to exercise all the rights accorded the child by the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA), which reauthorized the Individuals with Disabilities Education Act of 1990 (IDEA), and its implementing regulations; the Family Educational Rights and Privacy Act (FERPA) and its implementing regulations; the Americans with Disabilities Act (ADA) and its implementing regulations; Section 504 of the Rehabilitation Act of 1973 and its implementing regulations; and by any other federal or state law and regulation concerning education, special education, and/or vocational rehabilitation. Under the IDEA, the parent’s right to make educational decisions for the child transfers to the child on the child’s eighteenth birthday. Including such provisions gives the parent authority to accept, or challenge, school district decisions, to request evaluations, to sign Individualized Educational Programs (IEPs), request mediation or due process, settle a case on the child’s behalf, etc.
The power of attorney for health care (also called an advance directive) is similar to a financial durable power of attorney because it allows an individual capable of understanding to appoint someone else, called “the agent,” to make decisions. However, it differs from both the guardianship and a financial durable power of attorney. First, it applies only to medical care and healthcare decisions such as hospital admissions or whether to take medications or have a medical procedure. Second, it is only effective after the individual becomes unable to make medical decisions. Third, a doctor must make the determination that the individual is unable to make his or her own healthcare decisions.
Comparison of Guardianship vs. Powers Of Attorney
Court involvement: Yes
Revocation: With court approval
Bond required of agent: Possibly, if child has assets
Medical decision-making: Yes
Finding of legal incompetence: Yes
Financial management: Yes
Child’s consent required: Yes
Record-keeping: Must file forms with court
Powers of Attorney
Court involvement: No
Revocation: By principal at any time, if the child is competent
Bond required of agent: No
Medical decision-making: Doctor must activate
Finding of legal incompetence: No
Financial management: Yes
Child’s consent required: Yes
Record-keeping: Agent maintains account
Alternatives to Guardianship
The parent may also be counseled regarding options that do not vest authority in another individual. In “supported decision-making” or SDM, the child identifies, in a document signed by the child and the “supporters,” individuals who will assist him or her in making decisions in specific areas. SDM is only legally recognized as an alternative to guardianship in a handful of states. However, its foundational premise—that the disabled individual can make good decisions if provided with the proper support if or when needed—can inform a discussion about how broad or restricted a guardianship should be.
An ABLE account is an alternative to a guardianship over the estate for certain adult children. ABLE accounts were created as a result of the passage of the Achieving a Better Life Experience Act of 2014, (the ABLE Act). They are tax-advantaged savings accounts for individuals with disabilities who became disabled prior to age twenty-six. The accounts are to be established by the individual or a third party and to contain the individual’s assets or the assets of the third parties. Either the child or the parent can be the account owner; however, the child may control the funds. Assets can be used to pay for disability-related expenses such as education, housing, transportation, employment training, personal support services, healthcare expenses, financial management, administrative services, and other expenses that help improve health, independence, and/or quality of life. The drawback is that funds remaining in the account at the individual’s death must be used to reimburse any state where the individual received Medicaid.
Who is the client? Usually, it is the parent. In guardianships, the petitioner and the proposed ward may be adverse parties as a matter of law, but the situation may not be clear when a parent asks you to prepare a power of attorney for the child. It is important to determine that the parties are not adverse and that the child is giving the power freely and voluntarily. You wouldn’t want to draft a power of attorney that the child will either refuse to sign or will revoke; nor would you want to have any doubts that the child is not executing the document freely and voluntarily.
What are the client’s goals? The ABA has developed a “Practical Tool for Lawyers: Steps in Supporting Decision-Making,” which lists nine considerations in advising a client to pursue guardianship or an alternative. Use of the ABA Practical Tool can help identify the goals and the adult child’s needs, keeping in mind that the “least restrictive alternative” is preferred as a matter of law. In some cases, such as when the child has been financially exploited, guardianship may be the only way to mitigate the child’s vulnerability.
Does the parent want a court’s continuing involvement? Although the answer is usually a resounding “No!,” there may be cases when the parties simply cannot see eye to eye regarding their adult disabled child, and a court order becomes necessary.