Fw: [ILAssnMicroboardsandatives] New to the group and introduction questions ...

[Guest guest]

Here is a great article on guardianship...thanks, .

Ellen

Ellen Garber Bronfeld

egskb@...

RE: [iLAssnMicroboardsandatives] New to the group and

introduction questions ...

,

Alternatives To Guardianship

By Marsha Katz, Project Director

The Rural Institute, University of Montana

Preface

There is no question asked more often by the parents of a disabled child

than, “What will happen to my son or daughter when I am no longer around?â€

The combination of love, fear and concern as a child approaches adulthood

often has parents questioning whether or not they should pursue legal

guardianship. This parental inner struggle is made even more difficult by the

lack of information available regarding what a guardianship can and can’t do.

In fact, most people have many misconceptions about what a guardianship really

is... and isn’t. This article will offer parents, teachers and support

providers information they don’t typically receive about guardianship. In

addition, it will offer students and families alternatives that can allow

families to remain respectfully involved in their children’s lives as they

transition into adulthood.

Reality and Myth

First and foremost, it is essential that parents know that the best

protection for their child and their child’s future is a caring involved

family, and a network of community connections. With these two things in place,

aided by appropriate estate planning, parents can truly achieve some peace of

mind as both they and their child with a disability age. This same peace of mind

cannot be achieved merely with a legal peace of paper, which in reality offers a

mostly false sense of security, and provides for an unnecessary amount of

control.

Why is it a “false†sense of security? Typically, parents and others

believe that a legal guardianship document can prevent bad things from

happening, can insure good things will happen, and will fix things that go

wrong. Unfortunately, none of these commonly held beliefs are true. Even when

people have guardians, they can be abused, exploited and hurt by others. Just

like any of us, they can be physically hurt by friends or strangers, they can be

hit by a car, they can choose the wrong foods, destination and friends. Further,

having a legal guardian doesn’t guarantee receiving needed services and/or

supports, nor does it assure a great job or enough money. If something bad does

happen, or if the hoped for good things do not occur, a guardianship document is

not the one and only way to attempt to “fix†things, seek recourse or

provide advocacy.

The best and most respectful way to minimize harm, increase the prospect

of a quality life and provide advocacy is not the removal of someone’s rights.

We often hear the term “giving someone a guardian,†making guardianship

sound like some benevolent act, or the presentation of a gift. In reality,

“giving someone a guardian†means taking away their rights. In guardianship,

some or all of a person’s rights are taken away and given to a third person.

If someone has a full (plenary) guardian, they don’t have the right to choose

their own clothes, leisure activities, friends or even food. Another person has

the legal right to tell them what they can and can’t wear, what movie they can

see, with whom they can associate, and how many times a week they may eat potato

chips. The reality of a guardianship is actually the opposite of what we as

Americans have historically said we cherish. We have long and fervently believed

that our personal protections lie in having and exercising our rights, not

losing them, or having them taken away. We hold individual rights and the

control of our lives very dear. That being true, it becomes difficult, if not

hypocritical, if we seek to justify guardianship by saying we want to

“protect†our children. How can we protect them by removing their rights,

the very things we go to war to maintain for ourselves? Doesn’t it make more

sense, in the alternative, to partner our strength and rights with those of our

sons and daughters and, thus, have an increased joint power, rather than a

diminished singular one?

Alternatives

How then can students and adults with disabilities partner with others to

exercise joint power? There are a number of ways. The least intrusive is simply

by being connected and present. Go to meetings and planning sessions, and

participate together. Family members and friends, by their very presence and

advocacy, can assure that a person with a disability has every opportunity to

communicate, is treated respectfully, and that professionals focus on supporting

a person’s dreams and on recognizing and nurturing a person’s strengths, not

deficits.

When access to records, and routine invitations to meetings are important,

an adult person with a disability can empower a family member or friend to

participate by signing a “Release of Information†or “Advocacy

Authorization†(samples follow). Any of us can sign a “Medical

Power of Attorney†that allows another to advocate on our behalf, give

and receive information, and, in certain appropriately limited situations,

actually make our medical decisions for us. This is another tool that persons

with disabilities can use as well to partner with others while retaining all

their legal rights.

Another great tool for partnering with persons with disabilities is the

use of the “person-centered planning†concept. This can be utilized in

transition planning, job development/self employment and delivery of services

from the Development Disabilities, Mental Health, or other systems. Briefly, the

person planning process might contain the following steps/components:

1. First, the individual chooses who to invite. Typically this will be

those with whom the person feels a connection- family, friends, clergy,

neighbors, co-workers, teachers, etc.

The more people participating, who are NOT paid to be in someone’s life,

the better.

2. Everyone meets in a comfortable, non-institutional setting (preferably

with food), and, assisted by a facilitator, shares the person’s strengths and

dreams for the future. Everyone contributes, and family members are always

surprised at some of the new things even they find out. Also refreshing, is

having many different perspectives help to produce a picture of a whole person

who is the sum of many parts, rather than a limited picture of a single part.

3. An action plan and timetable are developed which address how to deal

with any real or perceived barriers to achieving the dream. Everyone leaves with

one or more tasks, and a time to reunite to monitor progress.

This person-centered method accomplishes several things. First, a network

of naturally connected friends and family assure that a person doesn’t make

decisions in a vacuum, or worse, have all decisions made “ in their best

interest†by paid service providers. Secondly, it assures that tasks and

support are shared by a number of people so no one person has the weight of

another’s happiness entirely on their shoulders. Third, it permits the person

and everyone else to be thoroughly conscious of the person’s strengths and

gifts and dreams and humanity, all of which increase the likelihood of

inclusion. The person-centered approach is a very natural way to partner with

someone to work toward and then achieve their dreams.

What If...?

There are many “what if...?†questions asked by families. For instance

I have often heard, “Shouldn’t I become my son’s guardian, just in

case?â€

If someone with a disability is in an accident, circumstances are not any

different than they are for the rest of us. If a person is injured in a car

crash, and is taken unconscious to the hospital emergency room, medical

personnel are legally empowered to take any action necessary to save life or

limb, regardless of the person’s inability to consent. If the situation is not

an emergency, but is nonetheless urgent, medical personnel typically ask next of

kin for treatment permission, regardless of whether or not the person had a

disability before the accident or urgent situation.

What if a written or verbal authorization is legally required for medical

treatment, and someone is not able to give one, and there is no medical power of

attorney in place? In such cases, a temporary guardian can be immediately

appointed at any hour by the local judge on-call, and the judge can grant the

temporary guardian only the power to sign the medical authorization. The

procedure is the same whether or not a person has a disability, and a judge’s

order can be very narrowly defined so as to achieve authorization for needed

treatment that lasts only until the person her/himself can resume exercising

their own power of consent.

What If.....Scenario #2

“What if I want to have my daughter sterilized so she can’t get

pregnant?â€

This is one concern that is often the real “hidden agenda†when

parents seek guardianship. In many states, sterilization, like a heart

transplant, is considered an “extraordinary procedureâ€, and is not covered

by a typical guardianship. In addition, if family and friends are concerned

because a woman is “too cognitively disabled to care for herselfâ€, then

perhaps more than pregnancy, people close to her need to worry about and guard

against abuse. If sexual abuse of a very vulnerable person is prevented, then

most likely, so will unwanted pregnancy be prevented. If a woman is able to

engage in consensual sex with a partner of compatible ability ( whether or not

he passes muster with her family), then a more typical solution might be birth

control, including methods like the underarm implants, which offers protection

for months at a time. Of course, all of this is assuming that the woman is

actually able to conceive ( is not biological sterile), and is actually sexually

active, or even interested in sex.

Sometimes the prospect of sterilization can actually be overkill by

parents who want to assuage their parental fears. It does not address the more

basic issues such as biological ability to conceive, interest in sex, having a

partner, how to meet people, developing and maintaining healthy relationships,

and how to say “NO†to unwanted touch. Unless a guardian is joined to a

woman at the hip and can monitor her 24 hours a day, then guardianship alone

cannot prevent abuse, exploitation or unwanted pregnancy or sexually transmitted

diseases. If a woman is under her family’s watch 24 hours a day, then

guardianship is unnecessary because there will be no opportunity for wanted, or

unwanted sexual contact. A family’s best chance at long term peace of mind is

helping to facilitate friendships and connections to people in the community who

are not paid to be in their daughter’s life.

“What If....†scenario #3

“What if my son or daughter is pressured or enticed into signing a

lifetime contract for new siding by some fast talking con man?â€

First of all, since guardianship doesn’t come with a magic shield, your

son or daughter might still be persuaded or coerced into signing something. It

will just be unenforceable. Instead of guardianship, advocacy is an appropriate

situational solution. All of us have 3 days within which we can withdraw our

consent to any sales contract we may have signed. Beyond that time frame, a call

by family, a friend, an advocate or attorney explaining the situation should

result in voiding the contract by the issuing company. Most companies do not

want their salespeople exploiting or taking advantage of vulnerable people. If

your son or daughter does not own property and receives only SSI and/or SSDI,

their benefits cannot be attached legally to satisfy a debt. The parents of

adults with disabilities are also not responsible for any debts their children

incur, unless, of course, they are co-signers. If all else fails, legal services

or your state’s Protection and Advocacy agency can assist with legal help to

explain in court how your son or daughter was exploited.

In all of these very common scenarios, guardianship is not able to prevent

bad things from occurring. In addition, there are other ways available to deal

with nearly all of the possibilities that are of great concern to parents, and

which leave your son’s and daughter’s dignity and rights intact. Some of the

possibilities for typical supports, available to everyone, or

disability-specific supports that can provide support and serve as alternatives

to guardianship include:

1.. Supports Available to All of Us

1.. Family and Friends

2.. Circles of Support

3.. Releases of Information; Advocacy Authorizations; Appointment of

Personal Representative

2.. Scheduled Checks and Alerts-Generic Community Assistance

1.. Postal service checks

2.. Unpaid utility bills/meter reader observations

3.. Telephone reassurance programs

3.. Generic and Disability Supports

1.. Food and prescription drug deliveries

2.. Meals on Wheels

3.. Home visitors and “Pets on Wheelsâ€

4.. Service animals

5.. Transportation to medical and other appointments

6.. Personal Assistance/Home Health Services

7.. Home sharing/roommate

8.. Home and Community-based Services (HCBS) or other Medicaid Waiver

4.. Legal Assistance Requested and/or Authorized by the Person

1.. Advance Directives/Protective Medical Decisions Document

(PMDD)/Living Will

2.. Surrogate decision making/Health Care Proxy

3.. Durable Powers of Attorney

5.. Assistance with Finances

1.. Banking services

2.. Joint ownership of bank accounts, or two-signature checks

3.. Authorization of a specific banking transaction

4.. Living and/or other Trusts (Amenities Trusts/OBRA Trusts)

5.. Representative Payee (appointed by Social Security for SSI/SSDI

benefits)

6.. Conservatorship

6.. Assistance Where We Live

1.. Case Management/Supports Coordination

2.. Senior Care/Adult Day Care

3.. Respite Care programs

4.. Continuing Care Retirement Communities

5.. Assisted Living facilities

6.. Group/ Care Homes

Utilizing a combination of the above alternatives, families have a full

toolbox to help them stay involved with their son/daughter, assure respectful

and meaningful support for their son/daughter, and protect their

son’s/daughter’s rights.

[Guest guest]

Beware of articles from outside Illinois. Each state has specific statutes on

forms of Guardianship and forms of powers of attorney. Illinois has a Limited

Guardian alternative, as well as a Temporary Guardian statute. Illinois since

August 2007 has a specific power of attorney for special education. Illinois has

a Mental Health Treatment power of attorney. SSA has their own form as does

Illinois DHS and the IRS. Further there are helpful additional provisions not in

the standard forms that an attorney should add. One size does not fit all. There

is no " right " answer for every child.

Sent from my iPhone

Rubin J.D.

SPECIAL NEEDS FUTURE PLANNING

Law Offices of Rubin & Associates

@...

office 847.279.7999

toll free 866.to.rubin

fax 847.279.0090

visit www.SNFP.net

Member of The Special Needs Alliance - www.specialneedsalliance.org

On Jul 15, 2011, at 4:15 PM, " ELLEN BRONFELD " <egskb@...> wrote:

>

> When access to records, and routine invitations to meetings are important