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Other Areas to Consider for Transition Planning

Because it is impossible to include all areas of concern for transition for all students, Section IV has introduced some of the most common and pressing concerns. However, there are a few other areas that should be considered for certain students. The following will be briefly introduced with resources listed on where to go for more information:  

Legal Issues

Issues such as guardianship, estate planning, what to do in case of the sudden illness or death of a caretaker, and other legal issues must all be considered at some point. Although often difficult to deal with, if one begins making some of these decisions during the transition years, one will have plans in place in the event a decision is needed quickly. Check Appendix I under Legal Assistance for helpful resources.
 

Guardianship

The state assumes that at age 18 every person is legally competent to make all life decisions. Parents are not automatically their adult child's guardian. Establishing guardianship must be formally requested and is a probate court procedure. It requires a careful evaluation of an individual and statements by a licensed physician, social worker, and psychologist.

Guardianship is the broadest and most restrictive form of decision-making help. A guardian is a person appointed by the court to handle both personal and financial affairs of another person who for a variety of reasons, may be incapable of handling his or her own affairs. Establishing guardianship is a probate court procedure. It does not occur automatically but must be formally requested. The authority of the guardian should be limited to those areas of decision making in which the person is clearly incompetent. Some examples may include naming a representative payee to cash benefit checks, opening joint bank accounts, establishing temporary guardianship limited to medical emergencies, or starting a trust fund.

To place a person who is mentally ill under guardianship, the court must be presented evidence by a physician that the person is incapable of taking care of him/herself as a result of mental illness. To appoint a guardian for a person who is mentally retarded, the court must have evidence from a clinical team showing that the person is so disabled as to be incapable of making informed decisions about personal and financial matters; that failure to appoint a guardian would create an unreasonable risk to the person's health welfare and property; and that by appointing someone with limited powers (namely, a conservator authorized to handle financial affairs only) would not be adequate.

Unless the guardian's powers have been limited by the court, the guardian is responsible for: 1) seeing to basic needs such as food, shelter, clothing and education; 2) seeing to medical needs, authorizing or withholding consent for most nonemergency, nonextraordinary medical treatment care; and 3) participating in decisions about admission, discharge, or transfer to/from institutions (such as hospitals).

For parents, guardianship can protect your child. It can assist you in advocating for better services on your child's behalf. However, guardianship also can diminish your child's self-esteem. It may rob your child of new experiences and responsibilities, such as voting. It can hinder learning, developing new skills, and/or transitioning to independence.
 


Conservatorship

Conservatorship is not as broad a form of help as guardianship. A conservator handles only the person's financial affairs, leaving the individual to continue making personal decisions. Conservatorship can be used for people in all income categories.

Conservatorship, like guardianship, must be obtained through the probate court. For a person of "advanced age" or "mental weakness," a conservator may be appointed if the court finds that the person is "unable to properly care for his property." For a person who is mentally retarded, the court must find that: 1) the person "is incapable of making informed decisions with respect to the conduct of his financial affairs, and 2) "failure to appoint a conservator would create an unreasonable risk to the person's property."

The conservator (or guardian) is responsible for paying the person's bills and debts out of their funds and managing the individual's assets in such a way as to maximize the benefit to the person. Property, bank accounts, paychecks, social security checks, stocks and bonds, and so forth all still "belong" to the individual, although they are managed by the conservator (or guardian).

For people whose only source of income is benefit checks such as social security, SSI, or veteran's benefits, and who need help managing this income, a representative payee may provide adequate protection without the more intrusive aspects of a conservatorship.

A permanent guardianship or conservatorship lasts until the individual dies or until the court orders the guardianship or conservatorship terminated because of the individual's improved judgment. A guardian or conservator can resign only with the court's permission.

A temporary appointment of guardianship or conservatorship lasts up to 90 days and may be renewed once for an additional 90 days at the discretion of the court. When a temporary appointment is ordered, permanent guardianship or conservatorship must also be requested; however, the permanent order is not granted unless the petitioner requests action.

Several sources can help you consider the guardianship options. Your local Arc has extensive experience with guardianship decisions and can recommend several publications (see Appendix I under Disability-Specific Services and Supports). The Department of Mental Retardation offers information free of charge to individuals who are eligible for their services (see Appendix I under Primary Transition Agencies). The Massachusetts Bar Association can put you in contact with attorneys who specialize in guardianship law (see Appendix I under Legal Assistance). To purchase the handbook "On Guardianship and the Alternatives," contact The Mental Health Legal Advisors Committee at (617) 338-2345.
 


Estate Planning

Confronting the question "What will happen to my son or daughter when I am no longer here?" is both important and complicated. Many difficult questions must be considered in estate planning.

The nature of estate planning will depend on the level of independence your son or daughter is likely to achieve and the type and severity of his/her disability. Will your son or daughter need or someday receive government benefits such as Supplemental

Security Income (SSI), subsidized housing, personal attendant care, or Medicaid? If your child receives or may be eligible for government benefits, then it is important to create a special estate plan that does not exclude his/her eligibility to receive those benefits.

A few things to consider in developing an estate plan include: Can my son/daughter earn a living and manage his/her own financial affairs? What living environment do I want for my son or daughter? What are my financial resources presently and projected over the next ten years? Will my son or daughter need a court-appointed guardian or conservator? Will a family member be designated to care for my son or daughter?

There are a number of approaches to estate planning (e.g., a will, a Special Needs Trust, the Life Planning Approach and the Letter of Intent). A lawyer with experience in disability law can develop an estate plan. You may also want to develop a team by consulting with other professionals who can lend their expertise in long-range disability planning, (e.g., financial planner, government benefits advisor, adult services coordinator).

For more information on estate planning, contact the ARC of Massachusetts, the Massachusetts Bar Association for an attorney who specializes in estate planning for persons with disabilities, or look in Appendix I under:

 


Respite and Home Care Caring for a teenager or an adult with a disability or severe health problems can be a full-time job. It is easy to become overwhelmed. Often, families who would not hesitate to call for relief from the constant care of children without disabilities hesitate to call for relief from the care of the child with a disability. That is why respite, as the word implies, is truly an interval of rest. Respite can provide renewed energies and a new perspective. If respite care is not available in your community, make it happen. The best advocate for your family is you.

For more information about respite look in Appendix I and contact:


Financial Planning

The future financial stability of individuals with disabilities may be a concern for some families and school professionals, especially for those students who may have difficulty being eligible for certain benefits because they have full-time or high-paying employment. Parents may want their child to be able to maintain the same quality of life to which they are accustomed. This often involves setting up trust funds for children, estate planning, or other methods of saving money for their future after the parents are no longer available to pay their child's living expenses.

The transition years are the time to begin thinking about future financial planning if the process has not already begun. When considering financial planning you may want to carefully consider your child's level of independence. A plan for a relatively self-sufficient person will be different from a plan for someone who is less independent. Consider the type of environment you want for your child and the type of care he/she will need. Then consider what financial resources you can make available. These may include life insurance, annuities, trust funds, etc. Further, you must consider transferring money to your child without jeopardizing eligibility for benefits. Also consider appointing someone to handle the money on your child's behalf if necessary. The following books may provide some guidance:

Alternatives, A Family Guide to Legal and Financial Planning for the Disabled by Mark L. Russell. (First Publications, Inc., Box 5072 Evanston, IL 60204)

Financial Planning for the Handicapped by Don P. Holden and Charles Thomas. (2600 South First St., Springfield IL 62717)

For more information about financial planning look in Appendix I and contact:



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