Written by Logan K. About the Ohio DD Council The Ohio Developmental Disabilities Council ODDC is a planning and advocacy group of over 30 members appointed by the Governor. The ODDC receives and disseminates federal funds in the form of grant projects in order to create new ideas, pilot new approaches, empower individuals and families, and advocate for systems change to more fully include people with disabilities in their communities. Foreword It is our pleasure to offer this book to the community. Building on a prior version written by David Zwyer, this book offers a comprehensive overview of guardianship and alternatives in Ohio in a question and answer format. The information is written for families who have a child with a developmental disability but may be relevant for others who need to navigate the often confusing and intimidating world of probate court and guardianship. We hope this book will help families and individuals understand the strategies available to plan for an individual with a disability, lessen the fear of guardianship, and provide guidance so that all individuals in Ohio live as happily, productively, and independently as possible. This book is not legal advice but instead offers general information that may or may not be applicable to any one situation. Over the years, we have provided information to parents, friends, relatives, and individuals about guardianships for adults who have developmental disabilities. Readers should consult their own attorneys to plan for their own unique situations. When a person turns 18, in the eyes of the law, he or she is now considered an adult and legally responsible to make decisions for him or herself. If a person is not capable of making decisions or caring for him or herself independently, a decision-making framework is necessary to support the individual to live as happily, safely, and independently as possible. Like each individual, each situation is unique. When families come into our office, they often think they need a guardianship because they have been told that by someone else, but a guardianship may not be necessary or recommended as the right strategy to promote the health, safety, and independence of an individual with special needs. When a family comes to us, we discuss the alternatives to a guardianship to ensure that the least restrictive yet effective strategy can be used. Because of this common misconception that a guardianship is the only strategy, this book will first discuss less restrictive strategies. This book contains many of the questions we have been asked over the years and the answers we give. A brief description of a guardianship is necessary in order to discuss the alternatives. A guardianship is a court-ordered relationship in which one adult is authorized to make decisions for and act on behalf of another adult person. Either, or both parents can be appointed as guardians. A parental relationship is not a prerequisite for a guardianship; another responsible adult can serve as guardian. It is important to remember that in a guardianship, the ward loses rights and the ability to act for him or herself. The type and scope of the guardianship determines what rights and abilities the ward loses. How do I know if a guardianship should be established? A guardianship is only established for individuals over the age of 18. Up until the 18th birthday, parents are already the guardians of their children. The process can begin before the 18th birthday, usually at 17 years and six months at the earliest. To establish a guardianship of an adult, the person must be considered incompetent. This is a legal determination and is defined in the. A person is considered incompetent if they are incapable of taking proper care of themselves or their property. Are there alternatives to guardianship? Yes, a guardianship is not always necessary or recommended for an adult with a disability. In fact, part of the investigation performed by court personnel is a determination if a less restrictive alternative exists. Under each of these alternatives, the individual with a disability does not lose any rights, instead he or she grants someone else the authority to act for him or her. Chosen Representative - A person receiving services in the DD system can now authorize an adult to make decisions for him about DD programs and services if he or she does not have a guardian and is not comfortable making those decisions him or herself. Choosing a Substitute Decision Maker An individual may also choose someone else to make a decision on his or her behalf. This decision maker applies only with DD services and not any services or programs provided by agencies outside the DD System. A power of attorney would be necessary in this instance. This authorization must be in writing. Although DODD has developed a form for such authorizations - which has the advantage of being easily recognized - the law does not limit a written authorization to this form. If the individual expresses an intent to revoke the authorization, it should be revoked. A chosen representative appointed pursuant to this written authorization must be an adult. He or she cannot have any financial interest in the decision relating to the service or program. For example, a provider cannot serve as an authorized representative and sign the person up to receive services from the agency for which he works. Also, chosen representatives may not admit the person they represent into a developmental center. It is expected that in many cases, the chosen representative will be a parent or other family member, even if they also provide services or natural supports. Financial Power of Attorney - A common concern for those who seek assistance for a guardianship is that the proposed ward will be taken advantage of, and therefore make poor financial decisions, such as opening credit accounts or running up large bills. There may be a less restrictive alternative to a guardianship for this purpose. A Financial Power of Attorney may be signed by the adult to grant another adult an agent the authority to manage his or her financial affairs. In this way, the individual with a disability maintains rights necessary to foster independence. He or she, with the agent, can work out a plan that protects the individual without sacrificing rights. For example, if the adult signs a contract or buys a car, the power of attorney has the ability to exercise the termination clause in the contract. With a power of attorney, the agent can monitor bank accounts or debit card transactions and close accounts, if necessary. How this might look: Parents would like their child to gain the ability to manage finances. If they become a guardian for their child, the child will never have the chance to manage his or her own property or bank accounts. The parents could then establish a separate checking account with a debit card linked to it. The parents could take money from the savings account and deposit it into the checking account for the child to use. This sort of arrangement allows for the child to demonstrate the ability to manage funds, with the goal being to independently manage increasing amounts. Are there potential drawbacks with a Durable Financial Power of Attorney? A person must be competent when he or she gives someone else the authority. Because the person with the disability who signs the power of attorney retains the right to speak and act for him or herself and can overrule the agent, diligence by the agent is very important to ensure that the person is not exploited. Nonetheless, for a person who has been taken advantage of in the past, the power of attorney may be insufficient. In addition, because only a competent person may sign a power of attorney, a legal challenge as to the competency of the person at the time of signing could be raised by an individual or organization who does not wish to allow the agent to act. Representative Payeeship - If the only significant income an individual receives is his or her monthly Social Security benefit, it may not be necessary for a person to have a Guardian of the Estate or a Plenary Guardian. A representative payee, which can be an individual or a company, can be established through the Social Security Administration for monthly payments to be made to the representative payee for the benefit of the individual with a disability. The representative payee can then pay bills and distribute money for the benefit of the individual. In this way, the representative payee may be able to handle all relevant financial matters. A Guardian of the Person or a Limited Guardian could handle all other matters. A representative payeeship, authorized representative or designated advocate may also be available for other state and federal benefit or entitlement programs. Each agency may have its own forms or requirements that may need to be completed. Direct Deposits and Automatic Bill Pay - Having funds from employment or Social Security directly deposited into a bank account keeps the actual cash from going directly to the person. Automatic payments can be set up to take care of regular expenses such as utilities. In addition, if the account is a joint account with a trusted person where two signatures are required for withdrawals, that person can manage the funds. It is important that only those assets belonging to the individual with disabilities be placed in this account because Medicaid, Social Security, and other means tested benefits will consider all the funds in the account to be owned b
