Founding Attorney
To be clear, having a disability does not necessarily necessitate the need for a guardian. This seems to be a common misconception and it is important to understand that not every person with special needs requires a guardian. After all, a guardianship is a legal process that results in certain important rights to decision-making being taken away from a person. Establishing a guardianship is a serious matter that has significant consequences for the ward, the person for whom the guardianship is being established. While guardianship can be necessary in order to protect a person with special needs and help ensure that critical decisions about their life and well-being are being properly handled, it is also a serious legal relationship with significant restrictions placed on the ward’s ability to manage their own life. As such, guardianship is not always right for a person with special needs.
Is Guardianship the Right Choice for My Loved One with Special Needs?
A guardianship may be the right choice for your loved one with special needs and it might not. This will depend a lot on the extent of your loved one’s needs as well as the availability of less-restrictive alternatives. You see, there are a number of other legal tools that can help protect and promote the well-being of a person with special needs that are less restrictive than a guardianship.
For instance, a health care directive can help ensure that there is a trusted and dedicated individual to make health care decisions on behalf of an individual who is unable to make or communicate such decisions for themselves. The named agent under the health care directive will be tasked with making health care decisions such as where the principal is treated and who treats them, among other health care choices.
A number of different types of powers of attorney can also work to avoid the necessity of having a guardianship established. With a power of attorney, the principal can appoint an agent to conduct a variety of legal and business actions on their behalf. This means the principal may be empowered to do everything from managing the principal’s household to their finances and everything in between.
Are you worried about a loved one with special needs being able to successfully manage their finances? You might want to consider establishing a joint bank account. This means that your loved one will have access to their money and be able to manage their own money once they are 18. It will, however, allow you to keep tabs and assist them in doing so. To provide financial support to a loved one with special needs without jeopardizing their continued eligibility for many government benefits, you may want to consider establishing a special needs trust.
Even if other less restrictive legal measures are not going to go far enough to effectively protect your loved one with special needs, there is also the ability to have a limited guardianship available. There may be no need for a general guardianship, which would grant a guardian all 7 powers of guardianship and be extremely restrictive. A limited guardianship can be limited to grant the guardian only one or more of the 7 powers of guardianship. These powers are:
- The power to determine where the ward lives
- The power to direct the ward’s care, comfort and maintenance
- The power to determine reasonable care for the ward’s personal effects
- The power to make decisions regarding the ward’s medical care
- The authority to approve or withhold contracts
- Supervisory authority
- The authority to access the ward’s government benefits
Minnesota Estate Planning Attorney
Are you considering a guardianship for your loved one with special needs? The team at Unique Estate Law knows that there are a variety of less restrictive legal tools you may be able to put in place to protect the best interests of your loved ones. Reach out to our office discuss your options. Contact us today. From within Hennepin County Unique Estate Law represents clients throughout Minnesota, including Minneapolis, Bloomington, St. Louis Park, Minnetonka, Wayzata, Chanhassen, and Excelsior.