This blog is my place to vent and share resources with other parents of children of trauma. I try to be open and honest about my feelings in order to help others know they are not alone. Therapeutic parenting of adopted teenagers with RAD and other severe mental illnesses and issues (plus "neurotypical" teens) , is not easy, and there are time when I say what I feel... at the moment. We're all human!

Thursday, March 17, 2016

Legal Guardianship vs Power of Attorney - Notes




A power of attorney and a guardianship are tools that help someone act in your stead if you are, or become, incapacitated. With a power of attorney, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act as guardian. ElderLawAnswers.com


Power of Attorney (POA)
You might want to look at POAs instead, or until, you get legal guardianship.

A POA is an estate planning document that gives a person you choose to make decisions and act in for the incapacitated person.

A POA allows you to work on your child's behalf, but your child can still say no. If you make a decision your child can still change/ overrule it at any time. They can also revoke part or all of the entire POA at any time.

There are several different kinds of POAs -

  • Medical (so doctors can continue to talk to you about your child after they turn 18 and you can continue to fill out forms, make appointments, talk to insurance companies...). This POA does not allow you to involuntarily commit your child to a psych hospital, but I'm not sure guardianship does either.
  • Special Ed POA - when a child turns 18, the school is no longer required to invite you to IEP meetings. This POA means the IEP team has to continue to invite you to meetings and you can still have input.
  • General/ Financial POA - which gives you access and control over your child's finances and estate; however, the child can overrule you.

It is important to note that whichever alternative is chosen, your youth should have an understanding of what the alternative implies, and parents need to understand that if the individual states, “I don’t want you here at this meeting” or “I don't want you to participate in this decision,” this statement could signify a revocation of a Power of Attorney.

My kids fought tooth and nail against legal guardianship, but they found POAs to be very convenient (they hate filling out all the forms at the doctors, insurance, government stuff...). So far, having several POAs and being my daughter's Rep Payee for her SSI has generally been a less expensive alternative for us.

Legal Guardianship

Guardianship deprives a person of the right to control their own life, sometimes in almost every aspect. It can be expensive and a lot of work for the guardian. Often we can get by with alternatives to guardianship.

If an adult becomes incapable of making responsible decisions due to a mental disability, the court may appoint a substitute decision maker, often called a "guardian," but in some states called a "conservator" or other term. Guardianship is a legal relationship between the guardian and the person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").

The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives, such as a power of attorney, have been tried and proven to be ineffective.

What is guardianship? Guardianship is the legal tool for becoming the spokesperson and decision maker for someone who is not able to exercise their own legal rights and responsibilities after age 18.

How do I decide whether or not my child needs a guardian? This is a difficult decision and one not to rush. Think about the skills you need to live in our society, then consider if your child has those skills or might acquire them or even function with some help given informally. If not, then explore the guardianship option. Also note that the process can be costly.

What are alternatives to guardianship? Options are Powers of Attorney, Supported Decision Making, Representative Payee for SSI, HIPPA form for medical providers; you can also get limited guardianship instead of full guardianship if your child can do some things for himself, but needs your authority for other areas.

When do I start getting ready for guardianship? You are your child's natural legal guardian until the day they turn 18, so you can't do it before that day. Since the documents required for the process must be relatively recent, start by the time your child is 17.5, giving yourself plenty of time to find a lawyer and prepare to go before the Probate Court judge.

What if I don't get guardianship right away when my child turns 18? At age 18, your child gains all the legal rights of any adult in our society. If your child needs some help with decision making, you may be able to help them make decisions by training and coaching from the sidelines. Even if your child does need more help, an occasion when you will need authority to make decisions may not arise right away. Do note that schools will turn to your child for a signature on the IEP if you do nothing after they turn 18. To learn about legal authority required in particular situations, talk to your physicians, school staff, and attorneys familiar with the guardianship process

We looked at guardianship, but unlike some other counties in our state it is very expensive here and you have to have 2 medical professionals agree that your child needs it. Since my daughter switched psychiatrists at age 18, the new pdoc didn't know her well enough to make that determination. The combination of the two issues led to us tabling the idea of legal guardianship. 

Now that Kitty is older and making more risky choices with life altering consequences, we are discussing guardianship again. 


Several helpful websites on guardianship:

http://texasguardianship.org/guardianship-basics/
http://texasprojectfirst.org/Guardianship.html
Alternatives To Guardianship (from http://texasprojectfirst.org/Guardianship.html)


It is important for parents to know that guardianship is not the ONLY option; in addition to guardianship, there are the following options:



Additional Resources: 

In my opinion, parents should consult an attorney before deciding on any option. Each family and individual will need to decide what is best for your situation.

Social Security Representative Payment program http://www.ssa.gov/payee/
Trusts (see ne
Consent to Authorize Advocacy (for public school setting) http://www.texasprojectfirst.org/Consent%20for%20Advocacy%20schools%20fill%20in%20form.pdf
Here is the blog of a parent who decided to get Power of Attorney for her child instead of guardianship: http://leahandbrandonblog.blogspot.com/2011/03/ssi-and-power-of-attorney.html