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Before Declaring Your Disabled Child Incompetent Four Alternatives to Guardianship

Before parents decide whether their child with a disability needs some type of guardian, they should consider the alternatives to guardianship. These include special needs trusts, representative payees, and citizen advocates. Special Needs Trusts Special Needs Trusts are a highly recommended alternative to a guardian of the estate.

Special needs trusts accomplish the same objective as the guardian of the estate, management of the assets of a person with a disability. However, special needs trust offers several advantages as compared to guardians of the estate. Chief among the advantages is a solution to the resource problems that might jeopardize the person's eligibility for governmental aid. To be eligible for many governmental benefits such as Supplemental Security Income and Medicaid, the person with a disability's total assets cannot exceed certain stated maximum amounts (often just $2,000).

However, amounts held for the person with a disability in properly drafted special needs trusts do not count as the person's assets for these purposes, while amounts managed for the person with a disability by a guardian of the estate are considered assets of the person with a disability. Accordingly, if parents think their child with a disability may require government benefits after their death, it is better to leave money in a special needs trust for their child than to have a guardian of the estate appointed and leave money to their child outright. Special needs trusts offer other advantages over guardians of the estate as well. In order to secure proper financial management, it is not necessary to declare the person who has a disability incompetent. There is no need for the constant, detailed reports that a guardian of the estate must submit to the court. It is not necessary to get approval from the court for expenditures on behalf of the person.

The posting of a bond is not required. (However, with a professional trustee there will be management fees.) The trustee will also have greater flexibility in investing than a guardian of the estate, and parents can select a trustee without the approval of the court.

The trust document containing the duties of the trustee can be written to include all the preferences of the parents. While family objectives will vary, normally a special needs trust is a better alternative than a guardian of the estate. Representative Payee A representative payee is a person or organization authorized to cash and manage public assistance checks such as Supplementary Security Income and Social Security for a person considered incapable of managing the money. The payee is appointed by the agency administering the funds. If the parents want a particular representative payee selected, they must notify the agency. If the representative payee is not a relative, service fees may be required.

The representative payee must keep an accurate record of all expenditures made on behalf of the person with a disability. The representative payee can be an alternative to a guardian of the estate when the only money the person with a disability receives is from the government or from a trust. Advocacy An advocate is like a guardian of the person, but without court authority or oversight. The advocate looks out for the interests of a person with a disability and provides personal attention, guidance, and representation.

An advocate can be either a friend or relative of the person with a disability or a staff professional of a mental health agency. Some mental health agencies advocate or lobby for laws that will benefit people with disabilities as a group, while other agencies lobby for individuals and their families. Agencies that advocate for the individual can be helpful in advising the person with a disability and the person's family concerning services in the local area.

Increasingly, private, nonprofit agencies are being created to provide individual advocacy support. The advocate can help the person with a disability on almost any matter. However, unlike a guardian, the advocate cannot legally make decisions for the person. For instance, the advocate would be unable to contract for the person with a disability, invest money without consent, or sign a medical consent-to-treatment form. Power of Attorney A power of attorney is a written document by which a person (the principal) authorizes another person (the agent) to act on the principal's behalf. The power of attorney is a simple document to draft and can be written for almost any situation in which the agent acts on behalf of the principal, such as buying and selling goods or contracting with third persons.

In limited circumstances, a power of attorney can be an appropriate method for acting on behalf of a person with a mild mental disability who does not need a guardian. For instance, many parents of a child with a disability hold a power of attorney to fill out and submit tax returns to the IRS. The powers of the agent are limited to those specified in the document. For the power of attorney to be effective, the person granting the power (the person with a disability) must understand its nature and purpose.

Copyright (c) 2007 L. Mark Russell.

Attorney L. Mark Russell has advised hundreds of parents who have a child with a disability. Arm yourself with time tested strategies that will protect your child and assure their happy and fulfilled life. There's still time to plan for your child's future IF you begin now by going to www.specialneedslegal.com

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