People with mental disabilities, and those who care about
them, have different ideas about whether guardianship is a
good idea or not. Like most things, it depends on the individual
situation.
Be suspicious of anyone who says you should "never"
have guardianship. Be just as suspicious of anyone who says
you should "always" have guardianship.
Deciding whether to seek guardianship depends on what you
want to accomplish. If you are worried that other people will
exploit your loved one financially, it is possible that you
could solve that problem without guardianship, by using a
Special Needs Trust, a "Financial Power of Attorney,"
or even becoming a conservator.
There are two types of guardianship for a developmentally
disabled person, Full and Partial. "Full"
(also called "Plenary") guardianship gives you absolute
power over the person’s living arrangements, medical care,
and finances. "Partial" (or "limited")
guardianship gives you almost the same thing, except that
the individual retains the ability to make certain decisions
by himself or herself.
EXAMPLE: "Jason" can’t balance a checkbook, and
accidentally writes checks which he regrets afterwards. How
can you help him with his checkbook?
ANSWER: Take him to the bank and get a "Power of Attorney"
form for Jason’s signature. He can give you power of attorney
to handle his checkbook for him, and you won’t need to file
for guardianship. This is a free service which is offered
by most banks, but they won’t explain it to you unless you
ask for it.
EXAMPLE: "Shannon" lives in an apartment with paid
staff to help her with laundry, shopping, and other household
tasks. One day a salesman called and talked her into signing
up for a year-long Cable TV contract she cannot afford. You
are her close family member. Which option would be best to
solve this problem?
ANSWER: As a full or limited guardian, you can stop the contract
immediately as soon as you find out about it. Just mail a
copy of your Letters of Guardianship to the cable company,
and let them know that Shannon did not have the legal capacity
to enter into the agreement. You can ask the cable company
to give Shannon a full refund and get rid of the expensive
service, even if Shannon "agreed" to a year or more
at a higher price.
EXAMPLE: "Annie" wants to get married to a sweet-talking
man, who just wants to get his hands on her money. You know
that he doesn’t really care about her, and would drop her
in a minute if she didn’t have an annuity every month.
ANSWER: You don’t need guardianship to stop this marriage.
File a petition with the Probate Court and ask to have the
annuity transferred to a Special Needs Trust, with you as
the Trustee. Once Don Juan finds out he can't get Annie's
money, he will stop coming around and bothering Annie.
EXAMPLE: "Billy" has his SSI money automatically
deposited into his bank account. He just can’t resist going
to the bank and withdrawing money when he wants to buy a new
toy or a bag of potato chips. He doesn’t realize that he will
be broke long before the end of the month if he spends it
all in the first week.
ANSWER: You can arrange to be made the "Representative
Payee" and then the check will come to you, not to him.
You can hand him small amounts of cash as he needs it, and
he will not be able to withdraw the money any more.
EXAMPLE: "Billy" has money in the bank account
which did not come from Social Security. How can he be stopped
from spending it unwisely?
ANSWER: This may require you to become either his guardian
or his conservator. Partial guardianship would be enough to
stop him from "blowing" all his grocery money on
games and puzzles.
EXAMPLE: "Theresa" is starved for attention. If
anyone strikes up a conversation with her, Theresa will do
whatever they ask, because she is so trusting. A misguided
social worker wants to move her out of her present group home
into a place that is dangerous and is located on the other
side of the state. You want to keep her where she is currently
living. How can you control where Theresa will live, when
someone has talked her into making a bad decision?
ANSWER: Guardianship, or at least a limited guardianship,
is probably the only way to "trump" that social
worker. The social worker has known Theresa for only a few
months, but you have known her all of her life. If you are
a family member with a long-term stake in Theresa’s welfare,
guardianship may be the only way you can ensure she is taken
care of properly.
EXAMPLE: "Connie" got pregnant by a man she had
just met, and the boyfriend disappeared as soon as he found
out what he had done. Connie needs a lot of help just to take
care of her own daily needs, and could not possibly care for
a baby or raise a child. You want to help Connie get an abortion.
What should you do?
ANSWER: If Connie understands that she needs an abortion,
just take her to the doctor and help her go through with it.
She can consent to this medical procedure herself, in which
case you do not need to be her guardian. However, if Connie
thinks that "Mr. Wonderful" will come riding back
on his white horse and sweep her off her feet, then you may
need to apply for Guardianship on an emergency basis and get
leave of court to have the abortion done. The probate court
can also authorize birth control and even sterilization when
appropriate. In re Wirsing, 456 Mich 467, 573
NW2d 51 (1998).
EXAMPLE: "Nathan" lives in an apartment
with paid staff part time to help him with his daily needs.
Whenever he has money in his pocket, he spends it on cupcakes
and toys. He receives a small check once a week from
a part-time job at a grocery store, but often has trouble
getting motivated to get out of bed and go to work on time.
He needs small amounts of money for immediate rewards when
he works, and the rest withheld for groceries. The staff
say they legally can't withhold his own money from him, so
every month he runs out of food. Plus, he is about to
get fired from his job due to frequent absences.
ANSWER: As guardian, you can work out a reward
program with Nathan and ask the staff to follow through.
This type of arrangement is not possible with a Power of Attorney
because Nathan could always just ask for his check and the
staff would still have to give it to him.
