1 00:00:09,049 --> 00:00:16,249 Hi, my name is Ellen Scult and I'm an attorney who works in Wayland, Massachusetts, and I'm holding up my name just for two seconds, so you could see the spelling if you do need to get in touch with me to answer some questions. 2 00:00:16,249 --> 00:00:23,569 So I'm going to give the talk today on guardianship. And I'll just just jump right in. 3 00:00:23,569 --> 00:00:32,239 So when a child reaches the age of 18, he or she is presumed to be a competent adult with the ability to make all decisions, 4 00:00:32,239 --> 00:00:37,999 all medical decisions, living choices, education, finance, everything. 5 00:00:37,999 --> 00:00:42,259 And this change in legal status is often surprising to parents, 6 00:00:42,259 --> 00:00:53,179 especially if their child has intellectual disabilities or mental illness that makes them unable to make safe, reasonable or appropriate decisions. 7 00:00:53,179 --> 00:01:06,979 So a guardianship, which I'll be speaking about, is a court proceeding where the court appoints a guardian to make decisions for someone else. 8 00:01:06,979 --> 00:01:15,109 So how do you know when you need a guardian for your child? You can ask yourself, Can your child make safe decisions? 9 00:01:15,109 --> 00:01:24,709 Reasoned choices regarding medications, medical procedures, living arrangements, education and other life choices. 10 00:01:24,709 --> 00:01:30,349 Will you have access to information you need? School records, social service records. 11 00:01:30,349 --> 00:01:40,819 Medical records? Can your child sign a health care proxy or a durable power of attorney? 12 00:01:40,819 --> 00:01:50,389 And does your child need anti-psychotic medications or other more extraordinary treatment that they may need help making decisions over? 13 00:01:50,389 --> 00:01:53,869 So these are some things you should think about, 14 00:01:53,869 --> 00:02:05,029 but the most important determination of whether a guardianship is appropriate is whether your child would be considered incompetent under the law. 15 00:02:05,029 --> 00:02:15,089 So. If your child is not incompetent, if your child can understand a health care proxy and health care proxies, 16 00:02:15,089 --> 00:02:20,529 a document where the child can sign and appoint somebody as their health care agent. 17 00:02:20,529 --> 00:02:30,659 So if they are incapacitated, if they get hurt, if they have a mental illness and they're having some sort of mental episode, 18 00:02:30,659 --> 00:02:38,069 that makes it impossible for them to make decisions, you know, a health care agency, 19 00:02:38,069 --> 00:02:43,679 whoever they pick would jump in and take over at that point to make decisions. 20 00:02:43,679 --> 00:02:47,249 It's called the springing power. It's not always in existence. 21 00:02:47,249 --> 00:02:57,269 It's only when the person you sign health care proxy is no longer competent and they need to be competent when they sign another document. 22 00:02:57,269 --> 00:03:03,719 The child could be competent to sign is a hippo release, which is a release just for medical records. 23 00:03:03,719 --> 00:03:08,729 And you can add in it your ability to speak to doctors. 24 00:03:08,729 --> 00:03:15,359 A HIPPA release does not give you the ability to make medical decisions, but gives you access to information. 25 00:03:15,359 --> 00:03:20,729 And finally, there's a durable power of attorney, and a durable power of attorney is a financial document. 26 00:03:20,729 --> 00:03:36,239 It allows you to handle finances for your child, dealing with bank accounts or investments, or, you know, can't make contracts for your child. 27 00:03:36,239 --> 00:03:38,849 It does not take away their ability to do those things. 28 00:03:38,849 --> 00:03:48,059 Also, so you you each have the same rights to make these decisions regarding your child's finances. 29 00:03:48,059 --> 00:03:55,829 All these documents require your child to be able to understand what the document is, who they want to be making these decisions, 30 00:03:55,829 --> 00:04:00,479 and an attorney who they would be signing this in front of would have to be comfortable. 31 00:04:00,479 --> 00:04:04,349 They understood it, and all those documents can be revoked at will. 32 00:04:04,349 --> 00:04:09,629 So if your child decides they no longer want you involved, they can revoke them. 33 00:04:09,629 --> 00:04:17,089 So if your child doesn't have the ability to understand a health care proxy or durable power of attorney, 34 00:04:17,089 --> 00:04:24,029 it may be appropriate for a guardianship and a guardian for guardianship. 35 00:04:24,029 --> 00:04:30,869 They need to meet the definition of an incapacitated individual. 36 00:04:30,869 --> 00:04:35,699 So there are two different definitions one definition deals with intellectual 37 00:04:35,699 --> 00:04:43,229 disabilities and an intellectually disabled person is defined as an individual who, 38 00:04:43,229 --> 00:04:45,749 before the age of 18, 39 00:04:45,749 --> 00:04:55,529 demonstrates significant sub average intellectual functioning, along with limitations in adaptive skill areas such as communication, 40 00:04:55,529 --> 00:05:02,519 self care, home living, social skills, self-direction, health and safety. 41 00:05:02,519 --> 00:05:07,619 And this is considered a permanent condition and it's experience. 42 00:05:07,619 --> 00:05:16,619 The other definition that would come under a guardian for incapacity is mental illness. 43 00:05:16,619 --> 00:05:26,039 So if a child develops mental illness at any age can be definitely after 18, 44 00:05:26,039 --> 00:05:34,529 they can be considered incapacitated if they are found to have a clinically diagnosed condition that affects their ability to perceive, 45 00:05:34,529 --> 00:05:40,469 to receive and evaluate information or to make or communicate decisions, 46 00:05:40,469 --> 00:05:48,629 and that which renders him or her incapable of making essential decisions regarding health, safety or self care. 47 00:05:48,629 --> 00:05:57,569 So those are the two definitions. So do all children who have intellectual disabilities need a guardian? 48 00:05:57,569 --> 00:06:06,959 No, it is strict. It is extremely difficult to know whether or not a guardianship over an intellectually disabled family member is needed. 49 00:06:06,959 --> 00:06:14,059 You really need to evaluate what decisions they can make for themselves and what. 50 00:06:14,059 --> 00:06:23,059 Concerns there are about making the safe decisions, and the good news is that even though guardianship is a really big step because 51 00:06:23,059 --> 00:06:28,009 it involves taking away an individual's rights and giving them to somebody else. 52 00:06:28,009 --> 00:06:33,499 The new guardianship laws really emphasize that it's not an all or nothing proposition. 53 00:06:33,499 --> 00:06:40,579 So there's a focus on limiting and tailoring guardianships to allow individuals to continue to have autonomy and 54 00:06:40,579 --> 00:06:52,369 decision making over areas that they can make decisions over and to give other decisions to the parent or the other, 55 00:06:52,369 --> 00:06:57,649 any other person appointed as guardian. So what is a guardian? 56 00:06:57,649 --> 00:07:10,909 A guardian is a court appointed fiduciary who is authorized to make some or all of a person's personal needs decisions. 57 00:07:10,909 --> 00:07:18,139 So medical decisions, housing decisions, social and education need decisions. 58 00:07:18,139 --> 00:07:28,489 Vocational decisions. A guardian can apply for benefits and insurance and is an advocate for the individual, 59 00:07:28,489 --> 00:07:35,859 so an a guardians decision should always take into account the opinions, values and choices. 60 00:07:35,859 --> 00:07:42,549 Of the incapacity party as much as possible, so who can be appointed a guardian, 61 00:07:42,549 --> 00:07:48,549 a parent, a sibling, a family member, a family friend, a professional? 62 00:07:48,549 --> 00:07:54,489 They have to be over 18. And the court has to find that they're qualified. 63 00:07:54,489 --> 00:08:08,799 A parent has priority to be appointed and all people get a criminal background check for a check and more than one person can be guardian. 64 00:08:08,799 --> 00:08:14,409 You can plan for succession, you can have a sibling and the parent. 65 00:08:14,409 --> 00:08:21,129 You can have two parents just as just something to think about. 66 00:08:21,129 --> 00:08:31,149 There are some programs where a parent can get paid a stipend for caring for their own children living at home. 67 00:08:31,149 --> 00:08:41,559 It's called the Adult Family Care Program, and there is another program, and under these, a parent cannot be a legal guardian and get paid. 68 00:08:41,559 --> 00:08:51,669 So if somebody is caring for someone with special needs at home and they have a guardianship, 69 00:08:51,669 --> 00:08:59,019 usually only one parent will be guardian and the other will be a caretaker if they qualify for the adult family care programs. 70 00:08:59,019 --> 00:09:04,599 Just something to think about. So how does a conservatorship different? 71 00:09:04,599 --> 00:09:09,399 Differ so a conservatorship deals only with finances. 72 00:09:09,399 --> 00:09:15,009 So a conservatorship is appropriate if there are assets and the individual is 73 00:09:15,009 --> 00:09:22,089 unable to handle the financial financial matters and the funds are in danger 74 00:09:22,089 --> 00:09:29,289 of either being wasted or if the person's in danger of being taken advantage 75 00:09:29,289 --> 00:09:34,749 of because they're too trusting because of their intellectual disabilities. 76 00:09:34,749 --> 00:09:41,799 You should look into a conservatorship, but a conservatorship is only of the individual who has money, 77 00:09:41,799 --> 00:09:49,769 so it's just the small amount of money they make in a special program would not be enough. 78 00:09:49,769 --> 00:09:57,309 A guardian could handle that. We're talking about money, such as money that the grandparents leave to them. 79 00:09:57,309 --> 00:10:03,549 And so there is a chunk of money or there could be bank accounts or stocks or things like that. 80 00:10:03,549 --> 00:10:17,469 And it often in those cases you can do a single transaction conservatorship and put these funds or put this this money in in a special needs trust. 81 00:10:17,469 --> 00:10:29,349 And so then you don't need continued court oversight because trusts are not part of court oversight and you can protect the funds without 82 00:10:29,349 --> 00:10:39,759 actually having to do accountings and everything that a conservatorship has that a conservator has to do for the conservatorship. 83 00:10:39,759 --> 00:10:43,539 So let me tell you a little bit about the guardianship process. 84 00:10:43,539 --> 00:10:49,959 So the process itself takes several months and truthfully, since COVID, it takes even more. 85 00:10:49,959 --> 00:10:58,959 It's more unpredictable. So if you are concerned about having the conservatorship before, I mean, sorry, 86 00:10:58,959 --> 00:11:07,299 the guardianship before your child turns 18, then you should start several months beforehand. 87 00:11:07,299 --> 00:11:15,819 But if there is ever an emergency situation such as your child needs oral surgery and they're 18 and the guardianship can come through, 88 00:11:15,819 --> 00:11:20,899 you can get a temporary guardianship for an emergency reason. 89 00:11:20,899 --> 00:11:28,509 So there are ways that can cover your child if you don't have a guardianship in them in advance. 90 00:11:28,509 --> 00:11:38,769 But so a guardianship, the thing that takes the longest to file to get to file a guardianship is the clinical team report, 91 00:11:38,769 --> 00:11:47,289 and a clinical team report is a medical. It's like a medical certificate, which I'll talk about. 92 00:11:47,289 --> 00:11:53,559 Also that something needs to be signed by three people a licensed psychologist, a registered, 93 00:11:53,559 --> 00:12:03,819 physician and a licensed social worker, all who are either familiar with the child or assembled. 94 00:12:03,819 --> 00:12:12,489 Just for the just to do this report and these these professionals all sign the same form. 95 00:12:12,489 --> 00:12:20,079 They look at tasks, they look at intellectual and adaptive and evaluate evaluations. 96 00:12:20,079 --> 00:12:27,699 They look at that diagnoses level of intellectual disability and impact on the informed decisions. 97 00:12:27,699 --> 00:12:35,829 That's a very inclusive document, and it goes in detail about what your child can and cannot do. 98 00:12:35,829 --> 00:12:46,089 Part of this is to limit the guardianship of part of it is just so the court really knows what functionally the child is capable of. 99 00:12:46,089 --> 00:12:50,769 And this document which takes a while to get is good for six months, 100 00:12:50,769 --> 00:12:58,749 which is great. If somebody does not have an intellectual disability but has mental illness, 101 00:12:58,749 --> 00:13:08,229 you use a medical certificate, which is a less involved document, although, and it is only signed by a medical professional. 102 00:13:08,229 --> 00:13:22,799 And it also goes through what the person can and can, can and cannot do and what their diagnosis is and a medical certificate. 103 00:13:22,799 --> 00:13:29,339 It goes through both is needed, both for a guardianship and a conservatorship. 104 00:13:29,339 --> 00:13:33,569 And but it is a less involved document, but it's only good for 30 days. 105 00:13:33,569 --> 00:13:40,859 So if you get a medical certificate which you need to file the guardianship, 106 00:13:40,859 --> 00:13:47,819 you will need another one by the time there's a hearing because you can never get a hearing within 30 days. 107 00:13:47,819 --> 00:13:52,229 So you would be filing this one of these medical documents. 108 00:13:52,229 --> 00:14:01,489 The medical cert or the clinical team report, along with the petition and the conditions pretty basic that you give. 109 00:14:01,489 --> 00:14:08,809 Information about the proposed guardian, the incapacitated person, family members, 110 00:14:08,809 --> 00:14:16,609 because family members get notice so siblings will get a notice or if there are no siblings, 111 00:14:16,609 --> 00:14:24,589 you know, then it depends on if there's somebody they've lived with for the last 60 days before you file the guardianship. 112 00:14:24,589 --> 00:14:33,079 It may just be that the parents get notice, but if a somebody who isn't a parent is filing for this, 113 00:14:33,079 --> 00:14:38,389 then the parents and the siblings would get notice. 114 00:14:38,389 --> 00:14:44,029 So the petition gets filled out, the medical certificates and a bond. 115 00:14:44,029 --> 00:14:50,449 So bond is just a form that you write down what you believe the assets are of the person, 116 00:14:50,449 --> 00:14:55,189 which are usually minimal for most guardianship for intellectually disabled kids. 117 00:14:55,189 --> 00:14:59,929 And you just sign it. There's no shortage. You don't have to pay for it. 118 00:14:59,929 --> 00:15:08,029 And it's just basically saying that you will take this seriously and be ethical about it. 119 00:15:08,029 --> 00:15:14,719 So these get filed with the court and the court generates a citation or a notice of the petition. 120 00:15:14,719 --> 00:15:25,939 This needs to be handed to the person over whom we are trying to get a guardianship in hand and everyone else can get notice by mail. 121 00:15:25,939 --> 00:15:32,629 People can assent to it if they agree to it, and a citation has an objection period. 122 00:15:32,629 --> 00:15:35,539 It's usually 30 days from the day it's generated. 123 00:15:35,539 --> 00:15:45,339 So for those 30 days, you have to wait to see if there's an objection filed and the only person who would really file an objection, 124 00:15:45,339 --> 00:15:50,029 I assume so doesn't usually happen with children, but with adults, 125 00:15:50,029 --> 00:15:59,599 there could be fights between siblings as to who should be guardian or a parent over who guardianship is. 126 00:15:59,599 --> 00:16:03,139 You know, they're trying to get guardianship may object. 127 00:16:03,139 --> 00:16:11,059 So those kind of things can happen with older people and with a Rogers guardianship, 128 00:16:11,059 --> 00:16:19,909 which I'll explain a little bit later where you're asking for permission to administer antipsychotic medication. 129 00:16:19,909 --> 00:16:29,809 The court appoints an attorney to represent the incapacitated party, and that person may object. 130 00:16:29,809 --> 00:16:33,049 So after the objection period ends, 131 00:16:33,049 --> 00:16:40,729 then usually the court will mark it up for a hearing used to be in the old days, you would mark it up yourselves. 132 00:16:40,729 --> 00:16:51,169 But now the the court generates their own markup date and they've been on Zoom in the past six months to a year, 133 00:16:51,169 --> 00:16:53,779 but now they're starting to be in-person. 134 00:16:53,779 --> 00:17:05,299 But whether the child needs to attend the hearing depends on what was checked off on the clinician's report or the medical certificate. 135 00:17:05,299 --> 00:17:13,189 There's a part that says whether or not it would be harmful for the child to attend lately, 136 00:17:13,189 --> 00:17:21,109 as the hearings that are on Zoom, there's been much more participation by the mother, 137 00:17:21,109 --> 00:17:33,499 by the children, and I believe you can still request that hearings are done virtually and then your child can participate if they want to do so. 138 00:17:33,499 --> 00:17:44,119 At the hearing, the judge will determine whether the child has an intellectual disability under the definition I had told you earlier, 139 00:17:44,119 --> 00:17:51,499 which I'm sure everyone's memorized and then with an uncontested, guardianship. 140 00:17:51,499 --> 00:17:57,869 The hearings last less than five minutes and a guardian is appointed. 141 00:17:57,869 --> 00:18:06,479 And the responsibilities of a guardian once you are appointed, if it's not a Rogers, if there's not, it's not a medical guardian, 142 00:18:06,479 --> 00:18:19,439 one with excuse me, if it's not a guardianship with anti-psychotic medications, then it lasts until you ask it to be terminated. 143 00:18:19,439 --> 00:18:27,959 And each year you're required to file a care plan, and that would be your obligations to the court. 144 00:18:27,959 --> 00:18:39,629 If there are antipsychotic medications needed, then the, as I say, the court appoints a clinic, 145 00:18:39,629 --> 00:18:50,419 an attorney for the or the incapacitated party who is present, and we'll talk to their client and see if they want the medications. 146 00:18:50,419 --> 00:18:56,159 And there will be more information before the hearing that a doctor has to 147 00:18:56,159 --> 00:19:03,389 sign a clinician's affidavit saying that the person needs these medications. 148 00:19:03,389 --> 00:19:11,579 A treatment plan is filed that discusses the range of medications that you're allowed to give the person, 149 00:19:11,579 --> 00:19:24,449 and you do findings of fact regarding those you talk about the the side effects and the pros and cons of taking these medications. 150 00:19:24,449 --> 00:19:29,249 And they when the judge rules in a Rogers case, 151 00:19:29,249 --> 00:19:35,699 it's you have many more instructions regarding the medications and those 152 00:19:35,699 --> 00:19:43,769 hearings take longer and then the Rogers guardianship is in place permanently, 153 00:19:43,769 --> 00:19:47,999 except the medications. The treatment plan needs to be renewed every year. 154 00:19:47,999 --> 00:19:51,599 So every year you need to file new clinicians. 155 00:19:51,599 --> 00:20:04,319 Affidavit knew the monitor has the person who's the Guardian needs to write a report, and there are the Rogers counsel. 156 00:20:04,319 --> 00:20:07,889 The attorney has to see the person and make their reports, 157 00:20:07,889 --> 00:20:16,739 and there's something called an uncontested process where you can file everything 158 00:20:16,739 --> 00:20:23,039 online and you don't have to appear if everyone agrees and the treatment plan does not get more, 159 00:20:23,039 --> 00:20:26,279 does not change or get worse if it gets less. 160 00:20:26,279 --> 00:20:36,569 It can still be done just online administratively, but it's not enough to go in if you need changes that make it more, 161 00:20:36,569 --> 00:20:46,719 you know, more medications than you have to go into court. And so those are the basics regarding guardianship, 162 00:20:46,719 --> 00:20:54,489 but I did want to say that it is important for the when you're doing a petition that you 163 00:20:54,489 --> 00:21:00,999 put down any limitations to the guardianship if your child can't make medical decisions, 164 00:21:00,999 --> 00:21:07,089 but certainly you can make all their social or educational or vocational decisions. 165 00:21:07,089 --> 00:21:13,779 You put that in the petition itself and when the court order or decree comes, 166 00:21:13,779 --> 00:21:18,339 those limitations are part of the decree and you'll get letters and guardianship 167 00:21:18,339 --> 00:21:24,939 that set out what your powers are and what powers are retained by your child. 168 00:21:24,939 --> 00:21:27,279 And conservatorships can also be limited. 169 00:21:27,279 --> 00:21:37,089 So if you do have a conservatorship and you don't do the single process where there's a maybe you can't where there's a trust, 170 00:21:37,089 --> 00:21:45,249 you can have a situation where the child has a certain amount of funds that they use on their own for anything they want, 171 00:21:45,249 --> 00:21:51,909 and that the rest of it or different parts of it are managed by the conservative there. 172 00:21:51,909 --> 00:21:56,379 So that's it, usually now I ask for questions, but I guess not. 173 00:21:56,379 --> 00:22:05,799 So anyway, if you do have any questions again, my name's Ellen Scult, you can give me a call and I'd be happy to answer your questions. 174 00:22:05,799 --> 00:22:06,593 Thanks.