A guardianship is a legal arrangement that gives someone (called a guardian) the legal right and duty to care for an individual (called the ward) and his or her property. The foremost legal question is, does the individual need a guardian? The answer is likely to be “yes,” if he or she is unable to act on his or her own behalf because of minority (not being of age) or because of mental or physical incapacity.
Minority depends upon state law. It usually terminates at age 18. In some states, it ends upon marriage even if the child is under age 18. Legal incapacity means that the person has rights but is prevented by some impediment in his or her abilities from exercising them. It is determined by procedures specified by state laws. Guardianship is not automatically given to the parents of a child with disabilities when that child reaches 18. The parents will need to apply for guardianship at that time.
Generally, to establish legal incapacity, courts require verification of the incapacity at a hearing that provides opportunity for rebuttal. Depending on the venue where legal incapacity is to be established, the input of a medical professional, attorney, psychologist, accountant, social worker, nurse, or other individual may be required. Incapacity is sometimes referred to as incompetency but incompetency is really just a manifestation of incapacity rather than the condition itself.
There are many types, or levels of guardianship. The type of guardianship should reflect the needs of the individual. Guardianship duties can be divided, and there can be more than one guardian. For example, there can be a guardian of the property and a different guardian of the person. In some states the ward’s self-reliance and independence is maximized by granting the guardian power only over those activities the ward is unable to handle.
Family guardians may be appropriate when a family member needs authority to act that isn’t provided by a power of attorney. If family isn’t available or appropriate, a professional guardian may be appointed to make some or all of the decisions for an incapacitated person. This is possible when an individual has adequate financial resources to pay for the assistance. If an individual has very limited resources, a public guardian may be appointed.
Comprehensive Rehabilitation Consultants has several professional guardians on staff. Professional guardians have been screened, have completed specialized training, and are bonded.
A trust is a legal entity that allows one or more persons, called the grantors or donors, to give assets to a second person, called the trustee, that must be utilized for the benefit of a third person, called the beneficiary. The trustee (or trustees; there can be more than one) should be someone who can be relied upon to manage the trust’s assets and income for the economic benefit of the beneficiary. Comprehensive Rehabilitation Consultants’ professionals can serve as trustees.
The best guardian or caregiver of the person with disabilities is not always the most qualified to administer a trust. Bank trust departments are commonly used as trustees. You can have more than one trustee, for example, both the guardian and a bank. An individual can also serve as a trustee, depending on the circumstances.
How Comprehensive Rehabilitation Consultants Can Help
As there are many types of guardianships and trusts, there are many decisions to be made and while we are not a law firm, we can help make these important decisions by working with the attorney the individual or family has selected. We can and do serve as professional guardians and/or trustees.
We can clarify the differences between personal and property guardianship, the levels of guardianship and types of trusts, including special needs trusts, and the complexities of choosing who should serve as guardians and/or trustees. We can also assist with reports that are required to be filed with the court.
For more information, please contact the Case Management department.