General Information-Guardianship/Alternatives & Financial Payees

Guardianship/Alternatives

• Families are naturally concerned about what will happen when their child turns 18, or when the parent is no longer around or able to advocate and monitor the care of their child. It is important to keep in mind that guardianship is a legal process, in which a public declaration of the individual’s incompetence is made. There are less invasive alternatives to guardianship such as durable power of attorney, etc.

• Michigan law allows for the appointment of a guardian for a person with a disability only when necessary and only if the person is unable to care for himself/herself or his/her estate. This appointment becomes a legally recognized relationship between the chosen guardian and the person with a disability (often referred to as the “ward”). When a guardian has been appointed, the court may authorize the guardian to exercise all of the ward’s legal rights. When all of the rights are taken from the ward, the individual is deemed incompetent.

• In Michigan, once a child reaches the age of majority (18 years old), the parent’s status as guardian is automatically terminated. Only through appointment as guardian by a probate court does this status continue. There are many different options to consider before seeking guardianship. This is a very restrictive procedure and should be used only when necessary!

• Power of Attorney – generally, a power of attorney is a document in which a person gives a legal authority to act on his or her behalf to another person. A DURABLE power of attorney gives the other person power to act even if the individual becomes incapacitated. Many people with developmental disabilities are not incapacitated and are legally able to execute durable powers of attorney. In 1990, the Michigan Legislature authorized a durable power of attorney for health care. The statute allows any person 18 years of age who is of sound mind to designate someone else to make decisions for them concerning care, custody, and medical treatment decisions, It is important to note that in order to designate a person to make medical decisions through a power of attorney, the individual does NOT need to understand all the medical ramifications of their treatment. They need only understand that they are designating someone else to make medical decisions for them. Many people with developmental disabilities are able to understand this and can avoid the legal process of a guardian appointment by simply making this designation.

• Amenities Trusts – For children who depend on governmental benefits and the public mental health system for support to live in the community, amenities trusts can supplement the bare necessity existence that government benefits require. Funds from such trusts can buy medical and dental treatment beyond what Medicaid will pay for, educational or vocational programs not paid for by public systems, recreation expenses or outings that would be impossible on the personal funds allowed by Medicaid, travel to visit siblings, books, phone calls and other non-SSI and Medicaid funded items. One of the important advantages is that trust funds can be used to

• Pay an advocate or other person to regularly monitor the individual for the purpose of ensuring that their quality of care, environment, and support are appropriate for their needs and desires. This is something a guardianship cannot do. There is no requirement that a guardian ever visit their ward. A trust can specify not only that there be monitoring visits, but also what the monitor will address, with a report to go to the trustee of the funds to direct the trustee about the needs of the individual. Most parents find this to be a far superior method of ensuring their child’s care than establishing a guardianship that goes into force after they are gone. A parent who is interested in creating an amenities trust for their child with a disability should contact their local ARC for a referral to an appropriate attorney.

Financial Payees

• If you are a recipient of governmental benefits, (SSI, SSB, etc.) and are unable or unwilling to handle the funds for whatever reason, a “representative payee” is appointed to manage the money for you. The payee must, by statute, account to the administering federal agency for how the funds are spent, just as a guardian would account to the court for funds of the individual. Thus, there is no need for a guardian to be appointed if the only income is governmental benefits.

• Through proper transition planning while they are in school, most students can begin to develop some sense of money. All students may not reach the same level of understanding, but most are able to comprehend coins, currency, and “pocket change.” With the Person Centered Planning process, the financial needs can be identified and options discussed (such as the ones listed below).

• Social Security Payee: This can be a parent or other family member, a close friend, agency or attorney

• Limited Bank Accounts
  • Co-signers
  • Ceiling Limits

• Trusts
  • Living Trust
  • Testamentary Trust
  • Revocable Trust
  • Irrevocable Trust
  • Insurance Trust
  • Special Needs Trust

• This is only a partial list of options. Please ask your financial institution or attorney for more detailed information.