Intellectual Disability and Guardianship

Guest Contributor: Elise Kopley, Esq.

When a child with an intellectual disability turns 18 years old, he or she is considered a competent adult with legal rights to make decisions regarding health, education, finances and safety. Parents are no longer able to make decisions on their child’s behalf or have access to their personal records. Elise Kopley, Esq., offers information and resources on intellectual disability and Guardianship as a protective arrangement.

1. What is Intellectual Disability?

An Intellectual Disability (ID) is defined as a person with sub average intellectual functioning existing concurrently with limitations in adaptive skills.  This term incorporates various intellectual and developmental deficits and conveys an understanding that the condition is relatively permanent and not expected to substantially improve over time.

2. Should all persons with ID have a guardianship?

No, before a person is determined to need a guardianship, a Judge must find that he or she meets the standard as an incapacitated person.  That is, the ID must result in his or her inability to receive and evaluate information or make or communicate decisions essential for their physical health, safety, or self care.

3. If a person meets the standard, must guardianship be obtained?

No.  A guardianship is a legal protective arrangement that is obtained because other alternatives are inadequate to meet a person’s health and safety needs.  If there is an adequate support system in place to address a person’s needs, guardianship may not be necessary.

4. If I have an ID child, when is the best time to get guardianship?

When a person turns 18 years old, he or she is legally emancipated.  This means, that in the eyes of the law an 18 year old is presumed competent to make informed decisions in all areas of their life.  Daily decisions include those involving health care, education, vocation, legal contracts and finances.  This means that parents are no longer able to make decision on behalf of their children or gain access to their school, medical and human service agency records.

If a parent knows that their son or daughter is not able to make informed decisions a guardianship should be in place by their 18th birthday.  As a general rule, parents should begin thinking of guardianship when their child turns 17 and file for guardianship four months prior to their child’s 18th birthday.

5. How can I get a Clinical Team Report?

The Clinical Team Report (CTR) is a medical document that must be submitted to the court when a person seeks guardianship of a person with ID.  The CTR must be completed by three different clinicians; a licensed psychologist, a licensed social worker and a registered physician.  It is common that all three clinicians sign the same CTR, but each clinician must have conducted an examination of the person to be placed under guardianship within 180 days of the filing of the CTR with the court.

Many times, the CTR is completed by a licensed school psychologist, a licensed school social worker and the primary care physician.  If a family is not already working with a licensed school psychologist and/or social worker, there are private clinicians who perform CTR evaluations for a fee.

6. Who can be guardian?

Any qualified person, age 18 or older, can serve as guardian.  However, the court seeks to appoint the most fitting person as guardian and certain people have priority.  In most instances, the parents of an ID person have priority of appointment as guardian.  The court conducts criminal records and abuse records check on all proposed guardians.  Therefore, parents should expect to submit to a criminal records check prior to appointment.

7. Can more than one person be guardian?

Yes, the court will appoint more than one guardian if it is in the ID person’s best interest.  Who serves as guardian(s) is a personal decision which is dependent on the unique needs of the family.

8. What if something happens to a parent who is guardian?

A guardianship terminates when the guardian passes away.  If a guardian becomes incapacitated, then he or she is no longer qualified to serve a guardian.  If a parent was serving as sole guardian and one of these two events occurs, a new guardian must be appointed by the court.  The court will honor the parent’s nomination of guardian for his or her ID child.  For this reason, it is important that parents execute their own estate planning documents in which they nominate successor guardian(s) for their children.

9. Can I be a care provider and guardian?

A guardian must make decisions regarding the ID person’s support and care needs, but is not responsible to perform care giving services.  There are certain programs administered through the federal and state government that provide financial reimbursement to caregivers of persons with ID.  In many of these programs, payment cannot be made to the legally responsible person, which would include a guardian.

Therefore, a guardian can be a care provider, but under some government programs, reimbursement may not be made to a guardian/caregiver.

10. Can I be guardian and representative payee?

Yes, a guardian can also be a representative payee.  If a person is receiving federal benefits from the Social Security Administration or Department of Veterans Affairs, a representative payee can be obtained to manage these funds.  This is done by a private appointment within the federal agency in which a person is identified to review and manage the funds for the recipient.  The federal agency privately monitors the appointments.  The representative payee only has authority over the funds he or she manages and authority does not extend to other types of decisions.

11. What is the difference between a guardian and a conservator?

A guardian is appointed to manage a person’s medical, educational, vocational and other personal decisions.  A conservator is appointed to manage a person’s financial affairs.  If decision making over personal and financial affairs is needed, both a guardian and conservator would be appointed.  The guardian and conservator can be the same person.

12. Where can I find more information?

Here are some useful links for further help:

Social Security Administration:  Disability Benefits

http://www.ssa.gov/pgm/disability.htm

Department of Veterans Affairs:  Benefits

http://www.vba.va.gov/VBA/

Massachusetts Department of Developmental Services:

http://www.mass.gov/?pageID=eohhs2agencylanding&L=4&L0=Home&L1=Government&L2=Departments+and+Divisions&L3=Department+of+Developmental+Services&sid=Eeohhs2

Massachusetts Rehabilitation Commission:

http://www.mass.gov/?pageID=eohhs2agencylanding&L=4&L0=Home&L1=Government&L2=Departments+and+Divisions&L3=Massachusetts+Rehabilitation+Commission&sid=Eeohhs2

Massachusetts Commission for the Blind

http://www.mass.gov/?pageID=eohhs2agencylanding&L=4&L0=Home&L1=Government&L2=Departments+and+Divisions&L3=Massachusetts+Commission+for+the+Blind&sid=Eeohhs2

Disabled Persons Protection Commission

http://www.mass.gov/?pageID=dppchomepage&L=1&L0=Home&sid=Idppc

The ARC of Massachusetts

http://www.arcmass.org/

Elise S. Kopley concentrates her practice in special needs planning including guardianship, advocacy and estate planning. Prior to joining Fletcher Tilton PC in 2008, Ms. Kopley was Assistant General Counsel at the Massachusetts Department of Developmental Services – DDS (formerly the Department of Mental Retardation).

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