Understanding the Need for Guardianship and Estate Planning. Angela Bryson, Intake/Family Resource Coordinator WV Autism Training Center (1/19/2010). Do I need to be a guardian for my child?. GUARDIANSHIP : Summary 101
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Intake/Family Resource Coordinator
WV Autism Training Center (1/19/2010)
Parents are the decision makers for children under the age of 18 years. When children reach their 18th birthday, the State considers them to be emancipated and their own legal guardian.
When a parent’s file for guardianship they are asking to be an appointed decision maker for their child. Here are some suggestions:
It is a good idea to file the petition for guardianship two months before the 18th birthday.
Also, you may want to appoint several successors to care for your child. If one appointed successor cannot take on the responsibility, you have a second individual legally appointed. Anyone can file a petition but they do not need to be appointed. An appointed guardian could be parent, sibling, spouse, or the court could appoint a sheriff or DHHR if the person does not have a family.
Who determines if a person needs a guardian, a psychiatrist or a physician can. There must be clear and convincing evidence at the hearing and the Burden of Proof is on the petitioner to prove the protected person needs guardianship.
The protected person has the right to a second opinion, but must pay for an independent evaluation. The protected person must attend the hearing unless under a doctor’s orders not to appear.
When the petition has been filed for guardianship, any protected person over the age of 7 years needs to be notified by certified mail.
An out-of-state guardianship can be made but there needs to be an out-of-state appointment to make it legal.
ESTATE PLANNING 101
Here are a few simple steps for creating an estate plan: The estate plan will make provisions for your child in your absence.
In a will you want to state who will inherit your property and care for your child.
If you hold property in a living trust, your survivors will not have to go to probate court to retrieve the property.
Write out your wishes for heath care in case you become unable to make these decisions for yourself. Health Care directives include a living will and a power of attorney
With a durable power of attorney for finances, you can give a trusted person authority to handle your finances and property in case you become incapacitated and unable to handle your affairs. The person you name to handle your affairs is called an agent.
Name someone you trust to handle the money and property your disabled child will inherit from you.
Name a beneficiary for bank accounts, retirement plans, insurances and make the plan automatically “payable on death” to your beneficiary, this allows the funds to skip the probate process.
Remember, each state laws are different. Always consult with an attorney in West Virginia that specializes in Estate Planning
WHAT IS A WILL?
Will (Testate):A will is a legal document that tells people what to do with your estate.
(Intestate): If you die without a will.
The Government will determine how to distribute your estate by a government trustee.
The Court will appoint a guardian for your minor children.
Distribution of your estate to your heirs could be delayed for a period of time.
Your estate may be subject to needless taxation and fees if it has not properly been arranged.
Wills are easy to draw up. You may want to consider obtaining a qualified estate planning attorney, however, it is not always required. There are lots of software products you can purchase from places like Office Depot for around $50.00. However, it is always a good idea to consult with an attorney for written clarification or your CPA.
A will describes several things:
When can a will be invalid:
If you do not have a will, your property will be dispersed according to state law. This law is called the state’s law of intestacy.
WHEN MAKING A WILL: HERE ARE SOME GUIDELINES for your child
When making a will, remember that not all the assets you control are governed by a will. Joint property with right of survivorship, for example, passes independently of a will. For example, life insurance is paid out to the named beneficiary without regard to the will. Many individuals have death benefits under an employer-provided pension plan. These are not governed by the will but are paid to whomever the employee has designated. Please consult an attorney when making a will.
The Special Needs Trust allows a parent, grandparent or guardian to provide funds for a disabled child without disrupting the child’s eligibility for government aid. Working with your estate planning attorney, you appoint a trustee for your child’s trust. The trustee will manage the assets you transfer to the trust for your child’s benefit. In the event of your absence, the trustee will also supervise your child’s finances.
1. Prepare a life plan: Decide what you and your child would want for the future, including a place to live, employment, social activities, religious activities and medical care.
2. Write a Letter of Intent. Put all your hopes and dreams in writing for guidance of any future care provider.
3. Recommend future advocates or Guardians/Conservator.
4. Determine the realistic cost of your plan, for example, housing, medical care, and social activities, with a 3% cost of living component.
5. Select a combination of resources that will guarantee adequate funds for the person's lifetime (1-85 years) including government benefits, family assistance, inheritance, savings, investments, and life insurance.
6. Have an attorney establish a Special Needs Trust to manage the resources now and in the future, protect government benefits and supplemental assistance. The Special Needs Trust only function is to look after the future of the person with the disability. Special Needs Trust expenses are tax-deductible. The Special Needs Trust is managed by the trustees, who are usually the parents. The parents should nominate future trustees to manage the trust in the event of their absence.
7. Choose a number of Successor Trustees to manage the trust funds.
8. Place the life and estate planning items in a special binder that contains your Letter of Intent, legal documents, medical records, and birth certificates.
9. Hold a meeting with all the parties to review your plan of action. Give out copies of the completed life plan and let others know where the original document is kept.
10. Review your plan at least once a year, update your Letter of Intent and have any legal documents modified as needed.
These forms can build the foundation for your child's future. Many programs such as Supplemental Security Income (SSI), Social Security, Medicaid and Medicare can fund a significant amount of your child’s needs. Medicaid is the chief funding source for your child’s independent living or day treatment programs.
A regular savings account can help meet your child's future needs.
Consult with other family members to see if they can contribute toward your child's financial needs.
Parents may leave a portion or all of their estate to the trust.
Parents can determine if they want their child to continue to live in the same house.
Retirement funds can be directed to the trust.
Military families may have a survivor benefit trust. This would allow continued medical benefits and some limited income to be directed to the trust.
Life insurance is one of the guaranteed methods to funding a trust.
Inheritance can be directed to funding the trust.
Many families have resources unique to them. The financial planner will help you determine which ones are appropriate for funding the trust.
Basically, a guardian handles the personal affairs of a protected person.
A guardian can be an individual, organization or state agency appointed by the Probate Court to make decisions on behalf of a person that the Probate Court has found to be incapacitated. A guardian protects the person's legal issues.
A conservator handles anything tangible for the protected person
A conservator is an individual, corporation or state agency appointed by the Probate Court to protect and manage the money and property of a person that the Probate Court has found to be incapacitated. A conservator protects the person’s financial affairs. If a conservator is appointed, they must post a bond, unless waived by the Mental Hygiene Commissioner or family law master. The bond is required to cover any income the conservator is controlling, the value of the property or any Social Security accounting. If the guardian is a sheriff, DHHR or a bank a bond does not need to be posted. The court can post real estate as a bond, but it must be approved by the court. If a conservator or guardian is not aware of the protected person assets, they can file an Inventory Appointment with the court. Once approved this document allows you as a conservator to go to the banks, check stocks or CPA’s to find out how much money is there.
As a conservator, you can abandoned any property if it is a burden to the protected person’s budget.
Some individuals are able to make responsible decisions in some but not all areas of their lives. In such a situation, a guardianship or conservatorship will be limited by the Probate Court to only those areas in which the person does not have the capacity to make a responsible decision.
A temporary guardian or conservator may be appointed without a hearing by the Probate Court in a medical emergency or when an already appointed guardian or conservator is not effectively performing his or her duties and an immediate action is necessary.
Not everyone who is incapacitated needs a guardian or conservatory. In some cases someone may already have the legal authority to make decisions on behalf of that person by the following:
A living will
Powers of attorney for health care
A living trust
A durable financial power of attorney
A guardianship must be filed where the protected person lives. If the protected person has moved to another county, whether they are in a nursing home, group home or hospital, the petition must be filed in that county.
The petition may be filed by the protected person himself/herself who appoints a guardian to oversee his/her legal affairs. The petition may be filed by a facility providing care for the individual or by any interested person who has an actual and substantial interest in the legal proceeding.
Anyone who has capacity to form a preference may nominate his/her own guardian or conservator. This nomination may be in writing, by an oral request to the court during the hearing, or may be proved by other substantial evidence.
In order for a guardian or conservator to be appointed, a petition must be filed in the circuit court or county commission of the county where you and your child reside. Guardianship procedures vary from county to county. The person petitioning must simply qualify as a suitable citizen whether family or friend, and demonstrate to the Commissioner suitability to exercise his/her duties as a guardian. The first step to obtaining guardianship is completing the application packet from the circuit clerk or county commission. The name of this form is Guardian Conservator. There is a $8.00 cost for this form. When all paperwork is completed an evaluation from the doctor or psychologist is needed to determine incapacity, then the application will be submitted and a $125.00 filing fee (check with your local circuit clerk as the rates may have gone up) must be paid. The person filing this petition is responsible for the filing fees, fees for services of process, and copies of the court records. The clerk will tell you how much these fees amount to. However, anyone who is determined to be financially unable to pay for these fees will not be required to do so. To have the fees waived you must verify your income by completing an Affidavit of Indigency. You can obtain this form from the circuit clerk's or county clerk's office. If you cannot afford to pay the court fees, a circuit clerk who will review the financial information in the Affidavit will determine whether you will qualify for a waiver of all court fees and costs.
If necessary, the circuit clerk or county commission can provide assistance in completing the petition, however, if a legal question or issue needs to be answered, you must consult an attorney for advice. Once the petition is filed, the court will schedule a hearing. Your child and other immediate family members will be notified. The court will appoint a defense attorney to represent your child at the hearing. At the hearing a judge or Mental Hygiene Commissioner will be appointed to preside over the hearing and will appoint a guardian and/or conservator if the evidence shows the individual to be incapacitated.
1. File a petition with the circuit clerk's or county commission office.
a. Evaluation report by a licensed physician or psychologist.
b. A statement of financial record.
2. Upon filing the petition the court will issue a Notice of Hearing date within 60 days
A Petitioner and persons named in the petition will receive notice not less than 14 days before the hearing.
3. Court will appoint a legal counsel for the protected person.
4. Protected person will have the right to an independent expert of his/her choice to conduct an evaluation.
5. A judge or Mental Hygiene Commissioner will be appointed to hear the case
6. Place of the hearing is determined. Location must be where the protected person resides
7. Who attends the court hearing? The protected person and anyone named in the petition. The protected person also has a right to oppose the petition, be represented by counsel, present evidence, provide his/her own witnesses and cross-examine all witnesses.
8. If the court decides the protected person needs a guardian or conservator, one will be appointed at this hearing.
9. A person found incompetent under the West Virginia State Law has the right to appeal to the Circuit Court of the county.
Alternatives to guardianship:
Guidelines to write your own Letter of Intent
What Information Goes Into the Letter of Intent?
What is Guardianship/Resources for family guardians
Autism Society of American
Planning for Children with Autism
Save Wealth Estates
Planning your estate
Information for this Power point was provided by:
Planning for the Future, Protective LifeInsuranceCompany, West Virginia Guardian and Conservator Handbook, Black's LawDictionary, The Special Needs Trust by Richard W. Fee with the National Institute on Life Planning for Persons with Disabilities. The West Virginia State Code Chapter 42, WestVirginia Guardianship and Conservator Act, Chapter 44A of the West Virginia Code, Autism Advocate (ASA) No.4, 2006, Web sites and life experiences.