Often guardianship is not necessary to meet the needs of an individual who is having difficulty handling his or her personal and financial affairs. There are alternatives that provide supports for the person or for substitute decision making authority in specific areas, and these should be used instead of guardianship whenever possible:
- Supported Decision Making:
Supported decision-making (SDM) is a term used to describe a series of relationships, practices, arrangements, and agreements designed to assist an individual with a disability to make and communicate to others decisions about their life.
- Direct Deposit, Electronic Payment and Joint Accounts:
Banks offer a variety of services which can provide tools to help manage a person’s funds. Sometimes the problems with keeping track of a person’s funds can be solved through direct deposit of income payments. Bank accounts can be set up for payment of regular bills, such as telephone, cable, insurance, car payments, rent or mortgage. Withdrawal limits can put a brake on exploitation and unwise spending. Joint signature accounts can provide for the requirement of two signatures, or simply for a second signer when the individual is ill and unable to sign checks.
- Advance Directive:
An advance directive is a document by which a person who is not presently incapacitated can give instructions for medical treatment in the future. With an advance directive a person can appoint an “agent” to make her or his medical decisions in the future if she becomes incapacitated. An advance directive can include information about the type of treatment the person wants. Medical guardianship is usually unnecessary if a person has a properly executive advance directive. (Advance directive is the term now used in Vermont for documents that used to be called Living Will or Durable Power of Attorney for Health Care.) More information and sample forms are available from: Vermont Ethics Network, Website: www.vtethicsnetwork.org
Appointing a Health Care Agent
A 2005 change to the Vermont law on health care decision-making makes it easier for a person with developmental disabilities to appoint a health care agent. The new law says that a person is considered to have the capacity to appoint a health care agent if the person:
- Has a basic understanding of what it means to have another individual make health care decisions for oneself;
- Has a basic understanding of who would be an appropriate individual to make those decisions; and
- Can identify the individual he or she wants to make health decisions.
Many people with developmental disabilities know what person they trust to make their health care decisions even if they are not able to articulate detailed advance directives. The health care agent, once appointed, can let the individual continue to make any decisions he or she wishes to make.
DDSD has drafted a simplified Health Care Agent form to assist individuals who simply want to appoint a health care agent. To be a valid document, the information on the first page of the form must be explained to the individual, and it must be witnessed as indicated. The form provides a space for an individual to provide simple personal instructions about future health care decisions. If the individual is in a hospital or nursing home, special witnessing requirements apply, and this form should not be used.
If the individual wishes to give detailed instructions, the form developed by the Vermont Ethics Network should be used, www.vtethicsnetwork.org
Appointment of My Health Care Agent, Simplified Form by DAIL
Health Care Agent Form, Vermont Ethics Network
Information for Providers about Clinical Order for LIfe Sustaining Treatment (DNR/COLST) with answers to common questions.
Do Not Resuscitate Order/Clinician Orders for Sustainting Treatment (DNR/COLST) Form
- Power of Attorney:
A power of attorney is a document in which a competent individual delegates to another person the power to manage specific financial affairs on his or her behalf. Often people execute a power of attorney when they are away from home or hospitalized to ensure that their financial affairs are monitored. A power of attorney can be written in such a way that it remains in effect even if the person who is being helped with his or her affairs becomes incapacitated. This is called a durable power of attorney. A power of attorney can also be written in such a way that it does not become effective until/unless the person becomes incapacitated. A financial power of attorney should be drafted by a lawyer.
- Representative Payee:
A person who receives Social Security, SSI benefits, Railroad Retirement, Black Lung, or VA benefits may have a “payee” to receive the benefits and pay bills. The payee usually opens an account as payee and the benefits are sent monthly by electronic deposit. The payee may use the benefits only for the benefit of the disabled person, such as to pay rent or buy food and clothing. The payee is accountable to the Social Security Administration or other government agency and has to file periodic reports as well as notifying the agency of any changes in the person’s status or income. If an individual does not have any income except government benefits and has a representative payee, there is no need for a financial guardian
A trust is a legal plan for placing funds in the control of a trustee for the benefit of the individual. Although the trustee controls the funds, the trust document dictates how the money is to be handled and for whose benefit it should be spent. For example, one spouse can place his or her assets in trust for the benefit of the other spouse. Trusts may affect a person’s eligibility for various public benefit programs, and an attorney should be consulted before executing a trust. Trusts are usually used when someone wants to give or bequeath a significant amount of funds or property to a person who will need assistance in managing the funds or property. If all of a person’s funds are in a trust and the trustee is reliably paying the person’s bills, there may be no need for a financial guardian.
- Case Management:
An active case manager through a social services agency can often provide the supports, advocacy and assistance that a person needs without the need for a guardian.
- Supported Decision Making and Circle of Support:
An informal or formal network of friends and family can often be sufficient to provide the supports and assistance that a person with mental disabilities needs and should be used whenever possible.