Kim Allshouse MSW MA Private Guardianship for Adults with Developmental Disability Who might need a guardian A guardian can be appointed for a person 18 years or older with a diagnosed developmental disability ID: 300609
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Prepared byKim Allshouse, MSW, MA
Private Guardianship for Adults with Developmental DisabilitySlide2
Who might need a guardian?A guardian can be appointed for a person 18 years or older with a diagnosed developmental disability
Not every person with a developmental disability is in need of guardianshipA guardian should be considered if:The person is unable to make his or her own decisionsThe person is able to make his or her own decisions, but consistently
makes decisions that put himself/herself in situations that are dangerous or where there is substantial risk of exploitationSlide3
Guardianship
Who needs a guardian?
Alternatives to guardianship
Petition process
Evaluation Process
Duties of a guardian
Rights of a person with a guardianSlide4
Probate and Family CourtProbate court judges decide in cases where a family member, friend, or other private citizen has petitioned for guardianship (14 V.S.A. Section 3060)
Family court judges decide in cases where there is a petition for a public guardian assigned through the Office of Public Guardian Slide5
14 V.S.A. Section 3060
“Guardianship for mentally disabled persons shall be utilized only as necessary to promote the well-being of the individual and to protect the individual from violations of his human and civil rights. It shall be designed to encourage the development and maintenance of maximum self-reliance and independence in the individual and shall be ordered only to the extent required by the individual’s actual mental and adaptive limitations.”Slide6
14 V.S.A. Section 3061A person is in need of guardianship if:
The person is mentally disabledThe person is at least eighteen years of ageThe person is unable to meet his/her needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future The person is unable to manage his or her financial affairs as evidenced by gross mismanagement of income and resources which is likely in the near future to lead to financial vulnerability Slide7
Alternatives to Guardianship
Guardianship involves the removal of rights. Alternatives to guardianship should be considered if the individual is able to voice his/her own needs and dreams and has a person who is able to support him/her by:Listening to the individual’s voice
Honestly assessing the individual’s ability
Respecting the individual’s dream
Being available in times of crisis
Being willing to do needed paperwork
Being a creative advocate
Keeping the person informed about what he/she is doingSlide8
Other Alternatives to GuardianshipRepresentative Payee
Joint Checking AccountDirect DepositPower of AttorneySpecial Needs TrustHealth Care Agent (Advance Directives)Slide9
Guardianship Process (Probate Court)
Interested party files petition in county where person livesIn many counties, the person for whom the petition is made (respondent) must be no less than three months from reaching the age of 18
Petition must be accompanied with the Statement of the Proposed Ward’s Assets and Income (Form 73) and by the List of Interested Persons for a Guardianship (Form 75)
Petitioner is asked to supply the name of an independent evaluator to evaluate respondent’s need for guardianship supports
A filing fee is charged
The petitioner may be asked to pay legal fees for legal representation appointed to respondentSlide10
Guardianship Process (Probate Court)
After Petition is filed:
Court appoints attorney for respondent
Evaluation is ordered
Evaluation completed and returned to court
Guardian ad
litem
may be appointed
Hearing is held
Judge makes decision (usually takes 45 – 60 days from time of filing to obtain court order)
Guardian posts bond Slide11
Powers of Guardians – 14 V.S.A. Section 3069
General SupervisionPower to choose or change residence, care, education, employment, supportive services
Contracts
Power to approve or withhold approval of any contract
Property
Power to approve or withhold approval of the individual’s request to sell or encumber property
Financial
Power to exercise supervision over the individual’s income and resources
Medical
Power to consent to surgery or other medical procedures
Judicial
Power to receive, sue for, and recover debts and demands due to the individual, to maintain and defend actions or suits, settle accounts….Slide12
The Evaluation Process - Interviews
Interview petitioner either by phone or in person
Ask for information regarding respondent’s abilities in each of the powers of guardianship
Arrange appointment to interview individual for whom petition has been filed
Based on the abilities of the respondent, interview him/her in a semi-structured format which queries his/her skills and knowledge in six areas of guardianship.
Interview other interested parties (case manager, school services, etc.)Slide13
The Good Guardian
A good guardian helps ensure that the person is: SafeLives in a safe homeLives with people who treat him/her right
Has appropriate clothing
Has a good support system, if needed
Source: DDMHS/DS, How to be a good guardianSlide14
The Good Guardian
A good guardian helps ensure that the person is: HealthyMake good food choices
Provide equipments, glasses, adaptive technology, etc.
Choose good doctors
Regular check ups
No unnecessary medications
Appropriate, quality hospital care
Help make choices about medical treatmentSlide15
The Good Guardian
Not cheatedMoney is not stolen
Charges are fair (purchases, rental agreements)
Loans are repaid
Deposit is returned when moving
People do not take belongings without compensation
Work is paid
A good guardian helps ensure that the person is:Slide16
The Good Guardian
Get and Keep Rights
Find a good lawyer, if needed
Receive mail, use the phone and see family as desired
Listen to the person at all meetings
Have choices and help to make own decisions
Get services and benefits to which the person is entitled
Vote
Have Privacy
The good guardian supports the person to:Slide17
The good guardian supports the person to:
Make his/her own decisions
Help the person follow his/her dreams
Be more independent
Find people to listen to desires
Find people to help take the necessary steps to support dreams and desires
Believe in the person’s gifts and talents
Support efforts to learn to make choices and decisions independently
Make sure the person knows how to appeal if dissatisfied with the guardian
The Good GuardianSlide18
A Guardian Should
Call and visit oftenReturn callsVisit often if hospitalizedListen to the person’s thoughts and desiresHelp make decisions
Treat the person with respect, as an adult
Attend important meetings
Respect his/her privacy Slide19
A Guardian Should NOT
Have a conflict of interestMake decisions without consulting the personBe disrespectfulMake decisions where the Court has not given powerTreat the person as a childSlide20
Rights of a Person with a GuardianAsk court for a different guardian
Ask to have guardianship order modified Appeal a decision of the guardianAsk court to terminate guardianship (Vermont Legal Aid)Slide21
Other Duties of A Guardian (Probate Court)Annual Personal Status Report
(Probate Court Form No. 93)Annual Financial accounting (Probate Court Form No. 89A)Notify court of change of addressObtain court approval for move to more restrictive settingObtain court approval for certain medical decisionsSlide22
For More Information
Probate Court website
vermontjudiciary.org
Forms
Probate Forms
Guardianship Involuntary
Guardianship Petition
DAIL website
http://dail.vermont.gov
Division of Disability and Aging Services
Office of Public Guardian
How to petition for guardianship
Private guardianship for mentally disabled adults