Private Guardianship for People with Developmental Disability

Report
Private Guardianship for Adults
with Developmental Disability
PREPARED BY
KIM ALLSHOUSE, MSW, MA
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 guardianship
 A guardian should be considered if:
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The person is unable to make his or her own decisions
The 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 exploitation
Guardianship
 Who needs a guardian?
 Alternatives to
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guardianship
Petition process
Evaluation Process
Duties of a guardian
Rights of a person with a
guardian
Probate and Family Court
 Probate 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
14 V.S.A. Section 3060
“Guardianship for mentally disabled persons shall
be utilized only as necessary to promote the wellbeing 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 selfreliance and independence in the individual and
shall be ordered only to the extent required by the
individual’s actual mental and adaptive
limitations.”
14 V.S.A. Section 3061
 A person is in need of guardianship if:
 The person is mentally disabled
 The person is at least eighteen years of age
 The 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
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:
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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 doing
Other Alternatives to Guardianship
 Representative Payee
 Joint Checking Account
 Direct Deposit
 Power of Attorney
 Special Needs Trust
 Health Care Agent (Advance
Directives)
Guardianship Process (Probate Court)
Interested party files petition in county where person
lives
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In 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 respondent
Guardianship Process (Probate Court)
After Petition is filed:
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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
Powers of Guardians – 14 V.S.A. Section 3069
 General Supervision
 Power 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….
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
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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.)
The Good Guardian
A good guardian helps ensure that the person is:
Safe
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Lives in a safe home
Lives 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 guardian
The Good Guardian
A good guardian helps ensure that the person is:
Healthy
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Make 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 treatment
The Good Guardian
A good guardian helps ensure that the person is:
Not cheated
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Money 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
The Good Guardian
The good guardian supports the person to:
Get and Keep Rights
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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
The good guardian supports the person to:
Make his/her own decisions
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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
A Guardian Should
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Call and visit often
Return calls
Visit often if hospitalized
Listen to the person’s
thoughts and desires
Help make decisions
Treat the person with
respect, as an adult
Attend important meetings
Respect his/her privacy
A Guardian Should NOT
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Have a conflict of interest
Make decisions without
consulting the person
Be disrespectful
Make decisions where the
Court has not given power
Treat the person as a child
Rights of a Person with a Guardian
 Ask court for a different guardian
 Ask to have guardianship order modified
 Appeal a decision of the guardian
 Ask court to terminate guardianship (Vermont Legal
Aid)
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 address
 Obtain court approval for move to more restrictive
setting
 Obtain court approval for certain medical decisions
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

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