Guardianship or Power of Attorney:

Questions to Consider

 

Families face many difficult questions when their children with disabilities, particularly intellectual disabilities, approach age 18. One of the most challenging decisions is whether seeking guardianship is necessary or appropriate. Many such children have sufficient capacity to execute a power of attorney, thus designating a parent or other trusted loved one as their agent, and this document will allow the adult child’s family to sufficiently continue to advise the individual. Other families determine that guardianship is needed in their particular case. But what kind of considerations guide these decisions? The following list of questions can guide these discussions.

 

• Would your adult child understand what he or she was signing in executing a power of attorney? In order to sign a POA, the principal, or person appointing an agent, must understand the nature of what he or she is doing. While they do not necessarily need to comprehend every word, a basic understanding of the power being granted is necessary, because otherwise the POA may be found invalid and not honored.

 

• How independent is your adult child likely to be? Do you anticipate he or she will live on their own? Will they work, and if so, will they make enough money to be self-sufficient? All of these issues can help a family assess how much help a person with a disability will need in life concerning questions of health care and finances.

 

• Does your adult child want you to accompany him or her to doctors appointments? Do they look to you for advice in health care decisions? Do they look to you to actually make a decision? Are they able to communicate their decisions to you and to others? Many of us seek advice from friends and family when making important medical decisions; however, if your adult child is unable to make or communicate these decisions, guardianship may be necessary.

 

• Does your adult child have a bank account that you help to manage? Just because someone needs assistance to manage his or her money does not mean guardianship is necessary. In many cases, a person with a disability may choose to appoint a parent as an agent to help access and manage bank accounts, but remains capable of using a debit card and depositing money into their account themselves.

 

• Could your adult child be a victim of “designing persons”? This is perhaps one of the most common reasons to explore guardianship — a concern that someone could take advantage of the person with a disability and steal from them. If your adult child is particularly susceptible to victimization, you may want to consider guardianship, which allows financial transactions by the disabled person to be invalidated in such a situation.

 

• Will your adult child contest the petition to seek guardianship? A critical consideration is whether your child wants you to continue to take care of their health care and finances after he or she turns 18, or if he or she wishes to be more independent. A contested guardianship can be very difficult, both legally and emotionally, for all involved.

 

Obviously each question and situation is filled with nuance. If your family is facing this decision and wishes to speak with an attorney about these or other considerations, please contact our office for further discussions.

By Caitlin McAndrews, Esq., McAndrews Law Offices, P.C.