Guardianship vs. Alternatives
What's the best solution for your family?
featuring Stephen Furnari,
8 Guardianship Alternatives
Their Benefits & Risks
Guardianship is the most effective way to protect your child when they turn 18, but it’s also the most restrictive. With the alternatives, your child retains more independence, but can be much more exposed to risk of harm.
In Florida, there are eight alternatives to guardianship that parents of children with intellectual and developmental disabilities (IDDs) consider. Each one is discussed here, together with their risks.
1. Making Decisions with the Assistance of Others
Essentially, no formal measures are put into place. Parents take the same approach to parenting as they would with a typical child after he or she turns 18. Your child makes their own final decisions about housing, healthcare, finances and living arrangements. You have the opportunity to provide guidance if your child seeks it.
The child retains all their civil rights and assumes dignity of risk.
Your child must make decisions they may not have the full capacity to make.
Decisions about healthcare, finances and living arrangements can be made by your child without your input or knowledge.
Does not protect your child from the influence of others who may not have your child’s best interest in mind, or worse, wish to harm your child.
There’s little you can do to control who your child associates with.
Your child will bear the full burden of the consequences that stem from bad decisions like getting married, refusing medical treatment or making inappropriate financial decisions, like co-signing for a credit card for a stranger or entering into a long term lease, or loaning money to others.
Your child can forbid you to assist them with major life decisions for any reason, or for no reason.
2. Joint Checking Accounts
To monitor your child’s finances, you open a joint bank account to hold your child’s funds.
You have full access to the bank account, and can make deposits and withdrawals.
You can monitor bank statements for funds coming in or out.
Your child can lawfully withdraw all the funds and open a new bank account where you do do not have access.
Your child can use these funds however they choose, including giving it to someone else access who may not have your child’s best interest in mind.
3. Checking Accounts Requiring a Co-Signer
To control your child’s finances, a bank account is opened where withdrawals require a co-signer.
You have full access to the bank account for deposits and withdrawals.
You can monitor bank statements for funds coming in or out.
You can control what funds come out of the account.
There is nothing to prevent your child from opening a different bank account that does not require a co-signer, or one that is jointly held with someone else.
Your child can direct his or her income to be deposited in the new account that you do not control.
4. Client Advocate for Agency for Persons with Disabilities Services
Under Florida Statutes, if your child receives services through the Agency for Persons with Disabilities (APD), a parent, or in the absence of the parent, a family member or friend can be appointed as a client advocate to be consulted in the development of a plan.
As parent, you can be consulted on APD services, with limitations (see Risks below).
The statute dictates that the “client” (your child) will be consulted about the development of an APD plan if they are competent.
Control over the determination of competency lies with APD staff, as opposed to you and a judge with guardianship.
For you to be involved, APD staff would need to determine that your child is not competent.
Client advocate status does not give you any legal authority, you are merely allowed to participate in decisions relating to services with APD.
5. Durable Power of Attorney
A legal instrument that your child would sign that gives you (or someone else) the right to serve as his or her “agent”, which is also called an “attorney in fact”. The instrument gives the agent the legal authority to make decisions, including legal, financial or health related. A “durable” power of attorney (DPOA) means that it is intended to continue even if the person granting it becomes incapacitated.
Once given, you can make just about any decision on behalf of your child without their prior consent.
At the time of signing, your child must have the mental capacity to understand what they are signing, the effect of a power of attorney, to whom rights are being granted and what property may be affected. This is a high threshold. that tends to make the use of a DPOA for a child with a developmental disability irrelevant:
If a child is competent, then a DPOA would not be needed in the first place, unless used for some other estate planning purpose.
A DPOA cannot be used to help a child with a developmental disability who struggles with some decision making. Arguably, that child would not have the competency to enter into the DPOA, rendering it invalid on its face.
DPOA’s are revocable at any time by your child, so your right to make decisions for your child would end instantly upon their revocation.
A DPOA would not prevent your child from granting a DPOA to another person, who may not have your child’s best interest in mind, or who may influence your child’s decision to revoke your DPOA.
While a DPOA gives you the authority to make decisions on behalf of your child, unlike guardianship, it does not preclude or prevent your child from make financial and healthcare decisions on their own and without your input. This may include lending money to others, co-signing on credit cards, entering into leases or taking out loans.
6. Representative Payee for Social Security Benefits
If your child receives social security benefits, you can apply to become your child’s representative payee. You will be legally responsible for negotiating and managing your child’s social security benefits, including using the benefits to pay for current and future needs, saving benefits not needed and keeping records of expenses.
You control the negotiation and receipt of Social Security funds, and can assure those funds are spent to meet your child’s basic needs.
The Social Security Administration assumes all adults are competent to receive benefits. In order for you to be appointed as a representative payee, you relinquish authority to the SSA to determine whether your child has capacity. If the SSA declines your application, your child must negotiated for, and manage, their benefits on his or her own.
You do not have full control over your child’s money. Your responsibility is to make sure basic needs are met. What’s left over is discretionary spending money that, in the absence of guardianship, your child has a legal right to access and spend.
As representative payee, you have no other legal right other than to negotiate with the SSA, receive funds and ensure your child’s basic needs are met.
Unlike guardianship, it does not preclude or prevent your child from make independent financial decisions on their own, such as lending money to others, co-signing on credit cards, entering into leases or taking out loans.
7. Florida Statutory Medical Proxy
Under Section 765.401 of the Florida Statutes, a medical proxy can be appointed for a person who is incapacitated or has a developmental disability without requiring any legal action or document. A medical proxy makes healthcare decisions on behalf of someone else who cannot make the decisions for themselves.
Under the statute, there is a certain priority for people who can serve, starting with a court appointed guardian, and then moving to a spouse, adult child, parent, adult sibling, adult relative “who has exhibited special care and concern,” close friend, and finally a social worker selected by a bioethics committee.
Typically, physicians will make the medical proxy sign a form in the presence of a notary that acknowledges their duties.
You can control healthcare decision for your child without hiring a lawyer to draft documents, with some exceptions (see Risks).
A medical proxy is not a blanket right. It would need to be determined if it is applicable with each physician or hospital visited.
Your child’s attending physician -- not you and a judge as with guardianship -- will evaluate and determine your child’s capacity. If the doctor determines that your child has capacity to make healthcare decisions, they can refuse to grant you the medical proxy and will rely on your child’s choices alone.
8. Supplemental (Special) Needs Trust
A supplemental needs trust (a.k.a. special needs trust, or SNT) is a legal vehicle to hold money for the benefit of a person who is eligible for government benefit programs such as Medicaid and Supplemental Security Income (SSI).
The money is held in the name of a trustee and is used for the benefit of the trust (your child). Your child does not get access to the monies in the trust. Funds must only be used to pay for comforts and luxuries that could not be paid for by public assistance funds.
The trustee, which is likely a parent, controls how funds in the trust can be used by purchasing things for your child directly.
Only funds that are gifted to your child would be deposited into the trust. SSI benefits, income earned at a job or gifts made directly to your child would be in the sole possession of your child to spend as they see fit, absent some of the other protections discussed above.
A special needs trust does not preclude or prevent your child from making independent financial decisions on their own, such as lending money to others, co-signing on credit cards, entering into leases or taking out loans.