GUARDIANSHIP & SPECIAL NEEDS TRUSTS JOHN E SCHNEIDER

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1 GUARDIANSHIP & SPECIAL NEEDS TRUSTS JOHN E SCHNEIDER

2 WHAT IS GUARDIANSHIP? Appointment of a individual to protect the rights and property of an incapacitated individual. Incapacitated individual is a person who due to mental of physical condition is substantially unable to provide food, clothing or shelter for himself, to care for his physical health or to manage his financial affairs. May be full or limited Guardian of the Person, Guardian of the Estate or both

3 FULL VS LIMITED GUARDIANSHIP Full Guardianship all powers and duties are transferred to the Guardian Limited Guardianship only powers and duties listed in the order are transferred to the Guardian. All others are retained by the Ward. Right to vote Right to drive Type of Guardianship will depend on the Ward s abilities

4 WHY GUARDIANSHIP Person deemed an adult when reach 18. May not have capacity to make own decisions. May not have the capacity to care for himself Parents no longer have a say. No access to records

5 ALTERNATIVES TO GUARDIANSHIP Powers of Attorney Representative Payee Joint bank accounts Advocate Permission to access records School medical

6 RIGHTS OF A GUARDIAN Take possession of the Ward Decide where the Ward will live Consent to medical treatment Establish a trust for the Ward Sign for the Ward

7 DUTIES OF A GUARDIAN Provide care for the Ward Supervise and protect the Ward Provide food, clothing and shelter for the Ward File annual report on the condition of the Ward. Duty to report abuse, neglect or exploitation

8 THE PROCESS File a petition with the Probate Court Notice to the proposed Ward and interested next of Kin (e.g. adult siblings) Appointment of an Attorney ad Litem Proof of incapacity Court investigator visit Hearing Order Issue of Letters pf Guardianship and payment of Bond Annual Report

9 THE PETITION Who is the propose Ward Nature of the incapacity Who is the proposed Guardian Are they qualified Full Guardianship or limited Why guardianship is needed Identify next of kin When to file after 18 th birthday

10 NOTICE TO THE WARD AND NEXT OF KIN Ward served with a copy of the petition by sheriff or process server Mail Petition to interested next if kin Spouses Siblings Parents

11 ATTORNEY AD LITEM Court appointed attorney for the proposed Ward Duty to represent the interests of the Ward Obligated to meet the proposed Ward and make own determination as to capacity Appears on behalf of the Ward at the hearing Generally paid by the Court Guardian ad Litem

12 PROOF OF INCAPACITY Physician s Certificate (Doctor s Letter) Can be from any licensed physician Court provided form Must be signed within 60 days before the hearing Determination of Intellectual Disability (DID) (Formerly Determination of Mental Retardation (DMR)) Usually done by local mental health authority Determines eligibility for services Must be within 2 year of the date of the hearing Endorsement of prior DID may be enough Some courts require both

13 COURT INVESTIGATOR Some courts have their own investigators They will visit with the proposed Ward and Guardians Report to the court

14 THE HEARING Guardian must be present Ward need not be present Establish facts showing incapacity Show why Guardianship is needed Show why Guardian is qualified

15 THE ORDER Names the Guardian Lists the Powers of the Guardian Sets the bond Notice to Police

16 LETTERS OF GUARDIANSHIP AND BOND Pay bond set forth in the order to clerk Clerk then issues Letter of Guardianship Letters good for 15 months Need to file Annual Report to renew letters

17 ANNUAL REPORT Must file annual report as to the condition of the Ward Three month grace period Most courts have a form Failure to file Guardianship expires.

18 SPECIAL NEEDS TRUSTS

19 WHAT IS A SPECIAL NEEDS TRUST? It is a trust established for the benefit of an individual with a physical or mental disability Protects the assets Retains eligibility for Medicaid and Social Security and other benefits

20 INDIVIDUAL VS POOLED TRUSTS Individual Only one person s assets Some banks and investment companies have minimum requirements Pooled Individual accounts Money pooled for investment purposes

21 THE ARC OF TEXAS MASTER POOLED TRUST Established over 20 years ago Managed by the Arc of Texas Low enrollment and management fees History of good rates of return Can be funded now or in the future Fund with life insurance or through a will Funds from the individual s sources or from third parties (parents or family) Trustee determines how the funds are used

22 TYPES OF ACCOUNTS Supplemental Trust Accounts Spending limited to supplemental needs Not food or housing Discretionary Trust Accounts Broader discretion as to how the funds are used

23 ALTERNATIVES TO SPECIAL NEEDS TRUST Able Account Like college savings account Can be self directed Limited to $100,000 If exceed that amount benefits suspended until amount drops below $100,000 NOT CURRENTLY AVAILABLE WAITING PASSAGE OF FEDERAL LEGIALATION

24 QUESTIONS John E Schneider Tel

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