Guardianship vs. Supported Decision-Making and Other Less Restrictive Options
Finding the right fit for my son’s transition to adulthood
Written by Jessica Girard, Consultant for PICS
When you have a child or loved one with a developmental disability, it is important to make plans regarding decision-making before they reach the age of 18. At that point, parents no longer have the legal authority to make decisions on behalf of their child. Two options are Guardianship and Supported Decision-Making.
Guardianship gives the parent the legal right to continue making personal decisions on behalf of their child, including where to live, medical decisions, training and education, if your child cannot make those decisions for themselves. This means the individual lacks sufficient understanding to make or communicate responsible personal decisions, and who have an inability to meet personal needs for medical care, nutrition, clothing, shelter or safety. It is helpful to communicate with other professionals about this decision, such as doctors, social workers, therapists or legal professionals.
Guardians can be parents, the person’s spouse, someone who has lived with the person for at least 6 months, paid professional guardians, or any other adult that the court deems suitable. The courts may consider several factors in determining a guardian, such as the person in need of guardianship’s wishes, the relationship between the two people, the interests of the proposed guardian, and the ability to pass background checks. There isn’t a limit to how many guardians can be appointed, and co-guardians may be an option.
Having a disability does not necessarily mean that the person needs a guardian. Independence, respect and equity are values important to all people. If a less restrictive alternative can provide proper protection, it must be used to avoid guardianship or conservatorship.
The process to establish guardianship includes:
- Filing a petition for guardianship. The law requires that a notice of filing be sent to all interested parties, including but not limited to spouse, all parents, and adult siblings. A Petition for Guardianship can be challenged by any person interested in the Ward’s welfare objecting to a petition for guardianship. All paperwork, documents, and filings will need to be mailed to all interested parties.
- Complete and file Notice of Hearing and Notice of Rights and Setting Date for Hearing.
- Request statements in support of guardianship from service providers and gather witnesses.
- A court visitor will meet with the individual.
- There is a court hearing, including testimony. The proposed person subject of guardianship must be present unless their appearance is waived by the court. The burden of proof is on the petitioner. They must prove that guardianship is necessary to protect the individual with clear and convincing evidence.
- After the hearing, the petitioner must complete and file the Order Appointing Guardian or Conservator, Notice of Entry of Order and Right to Appeal, and Acceptance of Appointment.
- The court will issue the Order and Letters of Guardianship.
After you are appointed guardian, you must complete certain tasks every year, including:
- Complete Annual reporting forms including, Personal Well Being Report, Annual Notice of Right to Petition for Termination or Modification, Bill of Rights, and Affidavit of Service.
- Serve copies of the paperwork to the person subject to guardianship and to all interested parties whose names are on record with the court.
- File the original copy of the annual reporting forms and Affidavits of Service with the Court, within 30 days of the anniversary date of being appointed as guardian.
To further protect the rights of individuals, some changes were made to Minnesota’s Guardianship Law in 2020, including:
- Time-limited guardianship for any person under 30 years old determined to need a guardian.
- Limited emergency guardianship orders for a temporary guardian.
- Stronger consideration of alternatives to guardianship, including the requirement of what alternatives were tried, for how long, the details of why they did not work.
Guardianship can be ended if the person subject to guardianship shows the court that they no longer need protections. Usually, they would need to have a professional testify that they have the ability to handle their own affairs.
Additional changes made in 2020 can be found on the Minnesota Judicial Branch’s website on guardianship.
Conservatorship is a legal process to take control of an individual’s money and estate. It is a similar process to guardianship, with filing a petition in court, a court hearing, and proving that conservatorship is needed. If a conservator is appointed, they are required to complete certain tasks, such as asset inventory and annual reporting on spending and financial decisions to the court. Like guardianship, it is the most restrictive option and should only be used when less restrictive options are not possible for managing finances.
A guardian or conservator must act in the best interest of the person under guardianship (personal decisions) or conservatorship (money and estate). Individuals under guardianship or conservatorship are protected by a Bill of Rights. The Bill of Rights states that the individual retains all rights not restricted by court order and these rights must be enforced by the court. The entire Bill of Rights is available on the 2022 Minnesota Statutes website.
Less restrictive alternatives
There is a lot to think about in terms of safety and decision-making for individuals with identified needs who need support in adulthood. For some, a combination of less restrictive options may be a good choice.
You will want to consider what kinds of decisions the individual needs support with. This sometimes includes:
- Where to live and who to live with
- Money management
- Healthcare decisions
- Relationships and socializing
- Time management
- Additional supports
Supported Decision-Making is assistance from one or more persons in helping an individual with identified needs understand, make and communicate their own decisions. This can look different for everyone. For some, it’s a person or group of people that the individual trusts with whom they discuss their decisions. Or, it can be a formal written agreement, called a Supported Decision-Making Agreement, in which practices or guidelines are documented to help them make their decisions. This is created together with the individual and those they trust to help guide them in decision making, or it could be a more informal conversation.
A Circle of Support is a group of people the individual trusts to help them make decisions. The individual can process decisions with these people and make a decision that is best for them.
Power of Attorney is a document that allows an individual to appoint a person or organization to manage their property, financial or healthcare affairs if they become unable. Power of Attorney can be customized to include some or all areas, allowing for more or less support.
An Authorized Representative can make decisions on behalf of the individual and support them in making decisions of their own. An example of this is a Medical Assistance Authorized Representative has the same responsibilities and rights as the applicant or enrollee.
A Health Care Directive is a document used when you are unable to make your own decisions about health care. An individual can discuss their wishes with loved ones and people who support them, and this is a legal way for everyone to know what their wishes are. They can also choose a Health Care Agent to make decisions for them.
A Representative Payee is a person or organization who manages Social Security payments for an individual who cannot manage their own benefits. The Representative Payee manages the funds and provides an account for expenditures.
Other less restrictive financial options include having a joint bank account or authorized signer so both the individual and supporter have access to the bank account. Another helpful financial tool is setting up automatic payments and direct deposits with the individual.
There are also great future planning and savings tools that allow for saving without losing eligibility for certain programs like Supplemental Security Income (SSI) and Medicaid, such as ABLE accounts, Special Needs Trusts and Supplemental Needs Trusts.
Having the opportunity to talk through options and make decisions with support helps teach individuals decision making skills over time.
When our son, Cody, was 17, we were unsure if he was capable of making decisions about where to live, healthcare, finances and approval of contracts for which he would be liable. Our concern was for his safety and well-being. We discussed all the options with professionals at a Transition Program. We attended it with him during his junior year in high school and we consulted a disability attorney.
Some of the options we discussed were:
- Guardianship vs. Supported Decision-Making
- Conservatorship (control of financial affairs) vs. joint bank account with a parent
- Power of Attorney
- Representative payee for certain government benefits
- Health Care Directives
- ABLE Accounts, Special Needs Trusts and Supplemental Needs Trusts
- Other protective orders
My husband, my adult daughter and I had multiple conversations with Cody. We wanted to make sure that Cody would not be taken advantage of and that his needs were being met, while still giving him as much control over his life as possible. We determined that we all felt comfortable with a combination of less restrictive documents and accounts. It has worked very well, and Cody has successfully been able to maintain all his decision-making rights, with our support. It’s very rewarding to see him developing his decision-making skills and building confidence in himself and his choices.
If you are interested in discussing Guardianship, Supported Decision-Making or any other estate services, Lutheran Social Service of Minnesota has trustworthy professionals to help with your legal, medical and financial affairs. You can contact them at 888.806.6844, email firstname.lastname@example.org or read more on their website.
Other Guardianship and Supported Decision-Making resources:
- Conservatorship & Guardianship in Minnesota Manual
- Arc Guide to Decision Making
- Center for Excellence in Supported Decision Making