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What You Need to Know About Special Needs Guardianships – Part 2

Published: September 1, 2022

You must know the key responsibilities of a guardian, once you understand how guardianship can help a special needs adult. Guardian duties vary depending on the protected person’s limitations and abilities. However, some general responsibilities tend to fall to all guardians, including:

  • Ensuring the protected person’s living situation is not only safe and appropriate but also the least restrictive environment
  • Providing for special needs adult’s daily basic safety and needs
  • Making routine and ordinary medical care appointments, decisions, and treatment arrangements
  • Providing for the adult’s future educational, recreational, and social needs
  • Applying for necessary benefits and health insurance
  • Advocating for the independence and legal rights of the ward

Guardianship Roles

A special needs attorney or disability lawyer will be able to outline the details of responsibility relevant to your state laws and benefit eligibility rules. For instance, parents can’t receive a Medicaid stipend to be their child’s caregiver and legal guardian.

What qualities do a guardian and successor guardians need to possess? Technically, any competent person over 18 may be a guardian. Parents will often request the court to appoint one or both of them as guardians. Even with two-parent guardianship, it is still necessary to select a successor guardian.

Successor Guardians

Conversations with potential guardian candidates must fully outline the responsibilities and necessary resources accompanying the role. One of the biggest issues to discuss is where the special needs adult will live. Possibilities include:

  • Independent living in a residential facility
  • At home
  • In the proposed guardian’s home

There are some instances when the guardian will move into the protected person’s home to promote and maintain the ward’s stability.

Letters of Intent and Financial Plan

When choosing a successor guardian, parents must prepare a letter of intent (LOI) providing information about family and friends’ roles in the child’s life and how to contact them. Include emotional factors, daily routines, and habits for continuity of the special needs person’s lifestyle. Your LOI should also have a funded comprehensive special needs financial plan and the appropriate legal documents that formalize and direct the plan’s implementation. This financial plan needs to include government benefits and how to ensure eligibility for these programs remains intact for the protected person.

Ending the Guardianship

A guardianship will end upon the death of the protected person or the death of the guardian. It may also end when a guardian is unable or unwilling to perform duties of guardianship. This situation requires a petition to the court that they no longer accept the inherent responsibilities, at which time the court will appoint another guardian.

The Financial Relationship Between Guardians and Trustees

Generally, a guardian is not personally financially liable or responsible for the protected person from their resources. However, the guardian or conservator usually is responsible for managing the individual’s financial resources. At times the guardian may share financial management duties with a representative payee or trustee from a special needs trust. It will depend on the parents’ special needs financial and estate plans regarding how money is managed. In the case of a special needs trust, a guardian will request funds from the trustee to maintain the protected person’s household and pay for vacations, trips, clothing, and other permissible expenditures for the ward’s benefit. It is mutually beneficial that the guardian and trustee have a trusting and respectful relationship since the trustee’s fiduciary responsibilities may conflict with a guardian’s financial request.

Talking to Those Who Want to Be Involved in the Protected Person’s Life

When and how do you go about asking someone to be a guardian? Guardianship planning is an important legal task for all parents but especially for those with a child with special needs. Open discussions and ongoing communication with individuals who wish to be involved in the special needs person’s future care are crucial for the best outcomes. There is much to consider as some people will be well-suited to a task while others will not. Spreading some tasks among family members is useful but identifying one guardian to act as a point of contact to represent the protected person’s needs fully is a must.

You may nominate this guardian in a will when a child is under 18 or if special needs, 18 and over. The court will still need to confirm the guardian after the parents’ deaths, but including the nominee in the will makes the parents’ preference known. It is possible to designate a standby guardian. Most states allow this designated guardian to care for their special needs child or adult if the parent becomes incapacitated or dies. If there is reason to believe this choice of guardian will be contested by the other parent or family members, the guardianship designation can receive pre-approval or confirmation by the surrogate or probate court before the parent dies. Not all states permit this pre-confirmation process; however, if it is available in the state where the child lives, the parent should nominate both a guardian in their will and designate a standby guardian.

Taking care of your children’s future is especially important and challenging when one is special needs. Proper planning with a special needs attorney or disability lawyer can ensure the unique requirements for your family member with a disability dovetail with the overall estate plan of your family. We hope you found this article helpful. If you have questions or would like to discuss your legal matters, please do not hesitate to contact our office at 215-364-1111 to schedule a consultation.

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It can be quite confusing to determine which Medicare plan is best for you. There are several types of plans, and each has its own advantages and disadvantages. Understanding some basic features will help you decide how to maximize your healthcare dollars and choices. You should review your choice periodically, especially as elements of the Inflation Reduction Act of 2022 change prescription medication and vaccine policies. Coverage can also change from year to year..

There are three basic types of plans:

  1. Original Medicare
  2. Medicare Advantage
  3. Medigap

Original Medicare

Medicare is a government health insurance plan for people 65 and older. Original Medicare, sometimes called traditional Medicare, comes in several parts. Each part covers different things and has various associated costs. 

Most people do not pay for Part A as it was deducted from their taxes paid while working. It is primarily for hospital visits and nursing care. However, there are many fees associated with being in a hospital that Medicare does not cover, which you still might have to pay out of pocket.

Part B requires monthly premiums, which can be deducted from your social security. You can elect to enroll in part B through Original Medicare. It covers a portion of doctors' visits, durable medical goods, and more. 

Part D covers the cost of many prescription medications. You can add it to Original Medicare or purchase it as part of a Medicare Advantage plan.

Medicare Advantage

Medicare Advantage is offered through private insurance companies that Medicare approves. Most plans include Parts A, B, and D of Original Medicare with some variations from the original. There are a wide variety of Medicare Advantage plans, including Preferred Provider Organizations (PPO) or Health Maintenance Organizations (HMO). PPOs tend to have higher premiums and offer more choices than HMOs. Medicare Advantage HMOs and PPOs often have higher premiums than traditional Medicare because they usually cover more expenses, including prescription drug costs, vision, hearing, and dental.

However, the overall costs, premiums, plus out-of-pocket expenses for Advantage plans can be lower than Original Medicare because the private insurers manage patient care and limit choices. They assemble networks of hospitals and physicians to control their costs and reduce their customer's premiums. They also restrict access to certain providers and increase the cost of care obtained out-of-network.

Traditional Medicare allows people to seek care from any provider participating in Medicare, which includes virtually all hospitals and physicians.


Medigap is a co-insurance or supplement to Original Medicare. You can enroll when you first enroll in Part B. It is also available through Medicaid, a union, or a former employer when you qualify for both programs. You can’t have both Medicare Advantage and Medigap plans. Medigap helps cover expenses that Original Medicare does not cover, such as co-pays and deductibles. Due to the enrollment restrictions, you should strongly consider Medigap when you first become eligible.

The Right Choice for You

With all the different plans, parts, choices, and restrictions, it is crucial to consider your priorities for care. Limited access to doctors and hospitals may become important if you need specialized medical care, such as cancer treatment. Before enrolling, consider what specialty hospitals are included in Advantage plans. Likewise, Advantage plans can make it difficult to see a specialist for ongoing and chronic conditions due to limitations in long-term care services. An estate planning lawyer or elder law attorney can help address long-term care planning and the potential to qualify for Medicaid when necessary.

The Kaiser Family Foundation has put together a cost analysis to help you determine when Medicare Advantage would save you money. As you can see, the longer you stay in the hospital, the less advantageous an Advantage plan becomes.

Consumer Reports notes that the JAMA reported that seniors on Advantage plans often get more preventive care than those on traditional Medicare plans. JAMA published a comprehensive paper about how Medicare plan choice affects spending and discovered that Medicare Advantage enrollees usually spend less.

Consumer Reports notes that the JAMA reported that seniors on Advantage plans often get more preventive care than those on traditional Medicare plans. JAMA published a comprehensive paper about how Medicare plan choice affects spending and discovered that Medicare Advantage enrollees usually spend less.

A Guide in Choices after 65

Enrolling in the right Medicare coverage is one of many decisions that will affect your quality of life in your senior years. We are here to help you navigate a wide variety of choices.

If you have questions or would like to discuss your legal matters, please do not hesitate to contact our office at 215-364-1111 to schedule a consultation.

- Medigap, Medicare Advantage, and Traditional Medicare

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