Estate Planning and Elder Law
Social Security Appeals
An eighteenth birthday is a special event for everyone. It marks the advent of “adulthood,” with all the attendant rights and responsibilities. But for the parent of an intellectually disabled son or daughter, it is a busy and perplexing time. It presents us with a lot of decisions to make – hard decisions about how much actual independence our child will achieve in the coming years. Many of our children are still in school when they turn 18 and it is from the school that most of us first learn of the difference their “adulthood” will make in our lives.
At eighteen, my son was still mostly non-verbal. He counted money, but he could not subtract the cost of a soft drink from the one hundred pennies he knew were represented by a dollar. But the law said he was now responsible for his own decisions. He could sign a lease for an apartment. He could promise to pay money for something he wanted, even without my permission. And he was suddenly the person who could make the decision about what would make up his Individualized Education Plan, not me. To me, he was still a young child. He was learning every day and he was maturing, but he wasn’t ready to take over making his own decisions. And, I didn’t know at that point whether or not he would ever be completely capable of doing so. But the law drew a line between my rights as a parent and Stephen’s rights as “an adult.”
At school, this problem is frequently taken care of by becoming the authorized representative. And at Social Security, a parent or adult sibling can become the authorized payee. But people start asking, “Are you your son’s guardian?” “Well, sure,” you reply. “I take care of everything he needs.”
And when that happens, you are faced with a time of decision about whether or not you file for legal guardianship — whether or not becoming the guardian is the right decision for you and your child.
Every parent is the guardian of his child until the child reaches the age of majority. As that guardian, we make decisions about where our child will live, what care they will receive (medical and personal). We determine, with some input from the child, what clothing they will wear and what school or social trips they will attend. When they turn eighteen, it is suddenly their choice whether or not they accompany the class on that school trip – not yours. Many doctors will no longer share medical information with a parent of an 18 year old individual.
The simple solution for medical decisions is for the individual to sign an advance health care directive which is specifically written to allow a parent or sibling to make their medical decisions for them. And, if the child has other money besides their monthly SSI check, a power of attorney can be drawn to allow the parent, sibling or other person to manage their money and sign various contracts, such as rental agreements. However, you need to be aware that a power of attorney does not stop the individual from making decisions for himself and does not invalidate a contract signed by your adult child. Also, a power of attorney may be cancelled by the individual, so in some situations the simple solution does not work.
Some programs require that the parent or other person become the legal guardian of the individual before they will share information or allow that parent to make decisions about their child’s care. And some intellectually disabled adult children are very verbal and eager to make decisions about where they will live or what agreements they will sign, but lack the problem solving skills to make appropriate decisions. It is in situations like these that the filing for guardianship is required. And, if the adult child with intellectual disabilities is working or has access to funds other than Social Security benefits, a conservator should also be appointed. In many instances a mother and father will ask to be the co-guardians, and if appropriate, the co-conservators. In my practice, I have found also that many families wish to have a “stand by guardian” appointed – someone who can take over the guardianship when they are no longer able to act as guardian.
Being guardian of an adult requires that you keep their wishes in mind each time you make a major decision. Just as we grant all our children more decision making control as they mature, so must the guardian understand that the individual with intellectual disabilities has wishes and desires that may differ from what the guardian wants for them. A guardian has to learn to limit their control to those areas of living and personal care in which the individual cannot make appropriate decisions.
Choosing the right person for guardian or stand by guardian is important. Usually a parent will serve. But in some cases the parent is not physically able to accompany the individual to medical appointments. Or the parent may even live in another state. In that case, a good choice may be a sibling, a cousin or a dear friend. The maturity and good judgment of the person chosen as guardian is important, including how well the individual with intellectual disabilities responds to them.
The legal procedure usually requires the help of a lawyer, although the requirements for filing are set out in the Virginia Code in §37.2-1000, et seq. A written petition is filed with the Circuit Court Clerk in the city or county where the individual (called the respondent) lives. A guardian ad litem (a lawyer to protect the rights of the individual/respondent) is also required. A medical report must also be obtained in order for the Court to make a determination that the respondent is actually unable to make appropriate decisions for himself, and a copy of the petition and the notice of the hearing must be filed and served on the respondent. A copy of the petition must be sent to three closest relatives. The GAL (guardian ad litem) must visit the family and the respondent, and must make a report to the court. In some instances, the fees of the GAL can be paid by the State of Virginia. A court hearing is required. In most instances, the hearing takes only a few minutes and the Judge usually signs the final order right then. The final order of guardianship will appoint the guardian(s) and give him, her or them the right to make decisions, both personal and medical, for the respondent. The guardians then must present themselves before the Clerk of the Court (usually in the probate department), and pay a small additional Clerk’s fee and receive their Certificates of Appointment. The guardian must also file an annual report with the local Department of Social Services.
If you think that the appointment of a guardian might be appropriate for your child, set aside some time to talk about it with your family and your son or daughter’s other caregivers, as well as the case manager and perhaps even your child’s doctor. And then arrange to meet with an attorney who can help you with the process of appointment. Most attorneys will meet with you for a brief, free consultation. Others will charge a nominal fee for helping you make the decision and usually will deduct that small charge from their fee for the guardianship. Still others will require you to deposit the full amount of the estimated fee when you sign in at their office, requiring that you make your decision about guardianship before you even meet with them. My preference is that you use the low or no-fee consultation to give you a chance to decide if guardianship is right for your situation.
Becoming their child’s guardian has been a blessing for many of my clients. For others, a specially drafted power of attorney and advance medical directive has been a very satisfactory solution to the problems faced by them as their child turns eighteen. But the choice, whether hard or easy, is always a very personal one.
Carrollyn C. Cox © 2010
Cox and Cox Attorneys
101 N. Lynnhaven Rd.
Virginia Beach, VA 23452