Q. If you receive state funding for respite, Medicaid, job coaching, etcetera, will you be responsible to pay back the government for those services once the disabled parents pass away? Or as long as the proper special needs trust is set up and worded correctly then it won’t be automatically needed to be paid back?
A. All special needs trusts are going to have a payback provision requiring payback for anything leftover at the end of the disabled person’s life. They can’t leave a succession plan for anything unless
there is anything left after Medicaid gets paid back. Then they can set up a succession plan for that remaining money.
Q. Are people with disabilities protected under the ADA or another law from HOA, Homeowner’s Association, requirements that would prevent them from living in their own home?
A. A homeowner’s association, would not be able to prevent you from staying in your own home. I think what she means is preventing you from, if there is a prescription on putting a ramp or certain things on the exterior of your house, they are typically protected. You would have to show the necessity of whatever the offending addition to the property is, but yes, you are protected under the ADA. What you would end up doing is you’re looking for a declaratory judgment from a court saying you’re able to do that. You would essentially serve that upon your homeowner’s association.
Q. If a conserved person has an auto accident or does something criminal, is the family financially responsible for any civil lawsuits that could be filed against the conserved person?
A. The conservatorship doesn’t totally absolve them from liability. Yes, let’s say you have a person whose only property is conserved and they get themselves into an auto accident. They are still technically liable. The ability to go after the money is a little more difficult for the plaintiff, but yes, you’ll see it oftentimes.
Yes, you do have liability exposure even if you’re the subject of guardianship or conservatorship. The actual fiduciary, the conservator, or the guardian, don’t have any liability for your actions unless you can show their gross negligence in, they gave them a car and they certainly shouldn’t have. They have to prove gross negligence or criminal negligence on behalf of the fiduciary. Then maybe you could get it together, but typically the liability doesn’t run to the fiduciary. If the fiduciary steals the money, then yes, they get in big trouble, but that’s a different question.
Q. Is an advance directive a better option for an adult child with autism who is on the more able end of the spectrum so that as the parent you have to say over his care if he is not able?
A. Yes, that’s exactly what it is. That’s exactly what the power of attorney or the healthcare proxy is going to do. It’s just going to be utilized when they’re not able to make those decisions or if they’re sick. It’s the least restrictive way of accomplishing that. It’s a relatively simple document to get in place. It should definitely be part of the package.
Q. When do you think is a good time for a parent to start thinking about the challenges of conservatorship and guardianship? If it’s before the age of 18, how much of a time before that? How far in advance should you start thinking about this?
A. At least a year. Luckily though, in most states, and most courts, it’s a quick process you’re able to start a guardianship proceeding. That doesn’t mean it’s going to be finalized quickly. You can usually at least get some type of immediate, emergency relief in the event that you need to do that. We call that an order to show cause.
It’s an emergency motion you’re able to make to the court to say, hey we need to get this going. We need to be able to step in temporarily while you determine if the guardianship was necessary. Planning is very important, but know you can always get that emergency order if you need to. A year to two years beforehand, start getting things into place. You’re going to have to start talking to potential successor guardians. Are they going to be willing and in a position to step in if you’re unable to be the guardian? Yeah, one to two years I would say is appropriate.
Q. Are there options for people who don’t have access to attorneys or who don’t have funds for attorneys? What would you suggest that people who don’t, have these concerns?
A. I would contact your bar association. That’s the association of the attorneys of your area usually on the county level. They all have some type of pro bono service that would help a person who doesn’t have the means to actually retain an attorney. They’ll help you on a case-by-case basis. They’ll screen you. Every year firms handle a couple of pro bono guardianships through the bar associations. Absolutely, that’s a great resource.
Q. Is there a limit to how many guardians you can put in place?
A. That is a state-specific question. I know New York typically, we only like to have two guardians at a given time. Any more than that it becomes cumbersome to get anything done. Usually, the rule of thumb is two guardians at any time. You have three guardians, it’s hard to get three people to agree on anything and consult on every matter it makes it very difficult. Sometimes you can have a maximum of two with one as a monitor. Usually, it’s about two.