Rethinking Guardianship
Introduction
Many people misunderstand who needs a guardian. Turning 18 does not mean a person with a disability automatically needs someone to take legal control over their decisions, even if they need help with things like finances, healthcare, or education.
Adult guardianship is when the court takes away a person’s legal right to make their own choices and gives those decisions to someone else to make. But the problem is that a person might only need help with some decisions and not others. For instance, they might be able to make decisions about everything except money. Another problem is that guardianship does not help with daily life or guarantees that the person will be safe. It is not case management or financial support.
Guardianship should be a last resort. Before choosing guardianship, other less restrictive options should be considered.
What We Do
- Educate people with disabilities and their families about the guardianship process and alternatives to guardianship.
When We Can Help
- Assist people with disabilities and their families who are seeking information on the guardianship process and alternatives to guardianship.
- Provide limited assistance for people with disabilities and their families needing changes to guardianship.
Important Note: We do not assist people in applying for guardianship.
Self-Determination: Your Right to Choose
Disability Rights South Carolina believes that people with disabilities have the right to make their own choices, just like people without disabilities. Everyone should have opportunities to live, work, and take part in their community. We support options that let people stay in charge of their own lives. While full guardianship may sometimes be needed, we believe it should only happen when there are no better options. Our job is to stand with the people we serve and support what they want.
What is Guardianship?
A legal process where a court appoints a guardian to make decisions for a person who is found unable to make decisions on their own.
Benefits
- Provide full legal protection for people who cannot make their own decisions and do not have enough support.
- The guardian must act in the person’s best interest by helping manage things like housing, healthcare, money, and other daily needs.
- Can protect the person from financial or medical abuse if the guardian is responsible and trustworthy.
Cons
- The person with a disability may lose most or all of their legal rights and will no longer be able to make decisions about their own medical, financial, or other choices for themselves.
- It is an expensive and long legal process that is hard to reverse once complete.
- It can cause conflict within family relationships.
- This could lead to financial or medical exploitation if the person granted guardianship is not trustworthy.
Learn More
Alternatives to Guardianship
DRSC advocates for people with disabilities to have the right and chance to live their life as they want. There are many alternatives to guardianship. These alternatives can help people make decisions without taking away their freedom and independence.
What It Is
A process where the adult works with trusted people, such as family members or mentors, to make decisions while keeping their legal rights.
Benefits
- Encourages independence and builds confidence in making decisions.
- Allows the person to stay in charge of their own choices while getting support.
- Can be done through formal or informal agreements.
Learn More
The SC Supported Decision Making Project
Center for Public Representation’s Supported Decision-Making Website
What It Is
A legal document that allows an adult to choose a trusted person to make decisions for them in specific areas, such as healthcare or finances.
Benefits
- Helps the person to stay independent while getting support in key areas.
- Can be customized to cover only the areas support is needed.
- It is easy to change or cancel as situations change.
- Less restrictive and more affordable than guardianship.
- A signed POA can be filed with the court, but you do not have to file with the court.
There are multiple types of Power of Attorney
Healthcare Power of Attorney
A healthcare power of attorney appoints a person to speak with doctors and make medical decisions on behalf of the person. The person can select a family member or friend to serve as their Health Care Power of Attorney.
General/Financial Power of Attorney
The financial power of attorney authorizes a person to manage a person’s financial affairs if they become incapacitated or unable to do so. It can specify which tasks are being given to the person, for instance, managing bank accounts and insurance, but not allowing real estate transactions.
Learn More
Contact a local attorney. If you need help you can contact the SC Bar Association
What It Is
A South Carolina law that allows the closest family member to make healthcare decisions for a person who cannot make them for themselves, if that person does not have a guardian or power of attorney. In South Carolina, the Adult Health Care Consent Act outlines who can make healthcare decisions for adults who are unable to consent for themselves due to incapacity. This act prioritizes certain people based on their relationship with the patient, such as a guardian, attorney-in-fact, spouse, or adult child. The Act aims to ensure that healthcare decisions are made in the best interest of the patient when they cannot make them independently.
Benefits
- Allows medical decisions to be made quickly without requiring legal work.
- Allows family members to act in the best interest of their loved one.
- No need for court filings or added paperwork.
What It Is
A South Carolina law that allows a student to choose someone to make educational decisions for them. If the student cannot make decisions, their family can step in. The South Carolina Adult Students with Disabilities Educational Rights Consent Act (addresses educational rights for students with disabilities when they turn 18.
Benefits
- Makes sure educational decisions are made in the students’ best interests.
- Family members do not need to file any legal paperwork.
- Helps the student keep access to appropriate educational services.
Learn More
DRSC Factsheet: Adult Students with Disabilities Educational Rights Consent Act
What It Is
Special savings account for people with disabilities. It allows them to save money without losing government benefits. If the account holder cannot manage it, a trusted person can manage it for them.
Benefits
- Allows people to save money without affecting Medicaid or SSI benefits.
- Allows friends and family to add money to help with future needs.
- The money can be used for education, housing, healthcare, and other important needs.
Cons
If the person with the ABLE account dies, the balance in the account will go to the state.
Learn More
Webinar: DRSC U | First-Party Special Needs Trusts, Pooled Trusts, & ABLE Accounts
What They Are
Specially designed financial tools that protect a person’s eligibility for government benefits while allowing access to money.
Benefits
- Protects eligibility to government benefits such as Medicaid or SSI.
- Can be customized to meet the person’s needs.
- Provides long-term financial security and is often used as part of estate planning.
Learn More
DRSC U | First Party Special Needs Trusts, Pooled Trusts, and Able Accounts
What They Are
Someone appointed to manage Social Security benefits for people who are unable to manage their own finances
Benefits
- You can choose who you want to serve as your Representative Payee. It can be a family member or close friend.
- You can change who your representative Payee is if you do not believe they are representing your best interest.
- Representative Payee are accountable for how they use your benefits and are required to keep a record of how they use your benefits.