Understanding the Need for
Guardianship and Estate Planning
Intake/Family Resource Coordinator
WV Autism Training Center (1/19/2010)
Do I need to be a guardian for my
Parents are the decision makers for children under the age of 18 years. When children reach their
18th birthday, the State considers them to be emancipated and their own legal guardian.
When a parent’s file for guardianship they are asking to be an appointed decision maker for their
child. Here are some suggestions:
It is a good idea to file the petition for guardianship two months before the 18th birthday.
Also, you may want to appoint several successors to care for your child. If one appointed
successor cannot take on the responsibility, you have a second individual legally appointed.
Anyone can file a petition but they do not need to be appointed. An appointed guardian could be
parent, sibling, spouse, or the court could appoint a sheriff or DHHR if the person does not have a
Who determines if a person needs a guardian, a psychiatrist or a physician can. There must be
clear and convincing evidence at the hearing and the Burden of Proof is on the petitioner to prove
the protected person needs guardianship.
The protected person has the right to a second opinion, but must pay for an independent
evaluation. The protected person must attend the hearing unless under a doctor’s orders not to
When the petition has been filed for guardianship, any protected person over the age of 7 years
needs to be notified by certified mail.
An out-of-state guardianship can be made but there needs to be an out-of-state appointment to
make it legal.
Here are some guidelines to plan for
making an Estate Plan for your child
ESTATE PLANNING 101
Here are a few simple steps for creating an estate plan: The estate plan will make provisions for your
child in your absence.
• Make a will:
In a will you want to state who will inherit your property and care for your child.
• Consider a trust:
If you hold property in a living trust, your survivors will not have to go to probate court to retrieve the
• Make health care directives:
Write out your wishes for heath care in case you become unable to make these decisions for yourself.
Health Care directives include a living will and a power of attorney
• Make a financial power of attorney:
With a durable power of attorney for finances, you can give a trusted person authority to handle your
finances and property in case you become incapacitated and unable to handle your affairs. The person
you name to handle your affairs is called an agent.
• Protect your children’s property:
Name someone you trust to handle the money and property your disabled child will inherit from you.
• File beneficiary forms:
Name a beneficiary for bank accounts, retirement plans, insurances and make the plan automatically
“payable on death” to your beneficiary, this allows the funds to skip the probate process.
When writing a will always consult an
• WRITING A WILL 101
Remember, each state laws are different. Always consult with an attorney in West Virginia that specializes in Estate Planning
WHAT IS A WILL?
Will (Testate): A will is a legal document that tells people what to do with your estate.
(Intestate): If you die without a will.
The Government will determine how to distribute your estate by a government trustee.
The Court will appoint a guardian for your minor children.
Distribution of your estate to your heirs could be delayed for a period of time.
Your estate may be subject to needless taxation and fees if it has not properly been arranged.
Wills are easy to draw up. You may want to consider obtaining a qualified estate planning attorney, however, it is not always required.
There are lots of software products you can purchase from places like Office Depot for around $50.00. However, it is always a good
idea to consult with an attorney for written clarification or your CPA.
A will describes several things:
• Who you are and what rights you have to give your property away
• A description of the property
• Exactly who do you want the property to go to
When can a will be invalid:
• Improper execution
• The grantor was not mentally competent and did not understand what they were doing
• The will was written under duress
If you do not have a will, your property will be dispersed according to state law. This law is called the state’s law of intestacy.
WHEN MAKING A WILL: HERE ARE SOME GUIDELINES
When making a will, remember that not all the assets you control are governed by a will. Joint property
with right of survivorship, for example, passes independently of a will. For example, life insurance is
paid out to the named beneficiary without regard to the will. Many individuals have death benefits
under an employer-provided pension plan. These are not governed by the will but are paid to
whomever the employee has designated. Please consult an attorney when making a will.
•First, you can disinherit your son or daughter with the disability. No state requires parents to leave
money to their children, disabled or not. If your assets are small and your child’s needs are great, the
best advice may be to disinherit your child by name and have him or her rely upon federal and state
supports when you are no longer available.
•Second, you can leave your son or daughter with a disability an outright gift. If you child with a
disability is not receiving government benefits, this may provide to be a good idea.
•Third, you can leave a morally obligated gift to another of your children that will be used toward their
care of their disabled sibling. For many parents who have a child with disabilities, the use of a trust is
the most effective way to help that individual. The point of a trust is to keep assets in a form that will
be available to your son or daughter but that will not disqualify him or her from government benefits
which he or she might otherwise be eligible.
What is a Special Needs Trust?
• HOW THE SPECIAL NEEDS TRUST WORKS
The Special Needs Trust allows a parent, grandparent or guardian to provide funds for a disabled child without disrupting the
child’s eligibility for government aid. Working with your estate planning attorney, you appoint a trustee for your child’s trust.
The trustee will manage the assets you transfer to the trust for your child’s benefit. In the event of your absence, the trustee
will also supervise your child’s finances.
• A life Plan, A Special Needs Trust and a Letter of Intent are legal instruments to put in place to take care of your child when
you are unable to do so. There are few guarantees in life. Yet, unless the family does a Life Plan for their child there may be
no guarantee at all that your child will maintain his public benefits program and have a steady livable income. By preparing
for your child's future, you will insure your child will maintain his current lifestyle. This guide offers suggestions for preparing
for your child's future. There are many other options available that only a specialized attorney; and not just one who does
general estate planning, but one who is knowledgeable about Special Needs Trust and current government benefits
program. One wrong word or wrong phrase can make the difference been an inheritance that truly benefits the person with
a disability and one that causes the person to lose access to a wide range of needed services and assistance.
• The government says that a person with a disability cannot have a trust. This is true. However, the Special Needs Trust does
not belong to the person with the disability. The Trust is established and administered by someone else. Instead the
individual with a disability is nominated as a beneficiary of the trust and usually is the only one who receives the benefits.
The Trustee is given the absolute authority to determine when and how much the individual should receive.
• Since the Trust is a legal document regulated by State laws, a specialized attorney may need to insert state regulations. Be
aware, that while the majority of public assistance funds come from the federal government, each state government is
responsible to regulate trusts and administer federal benefits. As long as the federal guidelines are followed to the
letter, the state will accept the Special Needs Trust and the trust will fulfill its function.
• In the Special Needs Trust you want to state that the government will not be reimbursed for any care provided to the
What is a Life Plan?
• Ways to prepare a life plan:
1. Prepare a life plan: Decide what you and your child would want for the future, including a place to live, employment, social
activities, religious activities and medical care.
2. Write a Letter of Intent. Put all your hopes and dreams in writing for guidance of any future care provider.
3. Recommend future advocates or Guardians/Conservator.
4. Determine the realistic cost of your plan, for example, housing, medical care, and social activities, with a 3% cost of living
5. Select a combination of resources that will guarantee adequate funds for the person's lifetime (1-85 years) including
government benefits, family assistance, inheritance, savings, investments, and life insurance.
6. Have an attorney establish a Special Needs Trust to manage the resources now and in the future, protect government
benefits and supplemental assistance. The Special Needs Trust only function is to look after the future of the person with the
disability. Special Needs Trust expenses are tax-deductible. The Special Needs Trust is managed by the trustees, who are
usually the parents. The parents should nominate future trustees to manage the trust in the event of their absence.
7. Choose a number of Successor Trustees to manage the trust funds.
8. Place the life and estate planning items in a special binder that contains your Letter of Intent, legal documents, medical
records, and birth certificates.
9. Hold a meeting with all the parties to review your plan of action. Give out copies of the completed life plan and let others
know where the original document is kept.
10. Review your plan at least once a year, update your Letter of Intent and have any legal documents modified as needed.
What resources can I use to prepare a Life Plan?
• STANDARD GOVERNMENT BENEFITS:
These forms can build the foundation for your child's future. Many programs such as Supplemental Security Income (SSI), Social
Security, Medicaid and Medicare can fund a significant amount of your child’s needs. Medicaid is the chief funding source for your
child’s independent living or day treatment programs.
A regular savings account can help meet your child's future needs.
• FAMILY ASSISTANCE:
Consult with other family members to see if they can contribute toward your child's financial needs.
• PARENTS ESTATE:
Parents may leave a portion or all of their estate to the trust.
Parents can determine if they want their child to continue to live in the same house.
Retirement funds can be directed to the trust.
• MILITARY BENEFITS:
Military families may have a survivor benefit trust. This would allow continued medical benefits and some limited income to be
directed to the trust.
Life insurance is one of the guaranteed methods to funding a trust.
Inheritance can be directed to funding the trust.
• OTHER RESOURCES:
Many families have resources unique to them. The financial planner will help you determine which ones are appropriate for funding
What is a Guardian and Conservator? How will being a Guardian
or Conservator effect my child?
• WHAT IS A GUARDIAN?
Basically, a guardian handles the personal affairs of a protected person.
A guardian can be an individual, organization or state agency appointed by the Probate Court to make decisions on behalf of a
person that the Probate Court has found to be incapacitated. A guardian protects the person's legal issues.
• WHAT IS A CONSERVATOR?
A conservator handles anything tangible for the protected person
A conservator is an individual, corporation or state agency appointed by the Probate Court to protect and manage the money and
property of a person that the Probate Court has found to be incapacitated. A conservator protects the person’s financial affairs. If a
conservator is appointed, they must post a bond, unless waived by the Mental Hygiene Commissioner or family law master. The
bond is required to cover any income the conservator is controlling, the value of the property or any Social Security accounting. If
the guardian is a sheriff, DHHR or a bank a bond does not need to be posted. The court can post real estate as a bond, but it must be
approved by the court. If a conservator or guardian is not aware of the protected person assets, they can file an Inventory
Appointment with the court. Once approved this document allows you as a conservator to go to the banks, check stocks or CPA’s to
find out how much money is there.
As a conservator, you can abandoned any property if it is a burden to the protected person’s budget.
• WHAT IS A LIMITED GUARDIANSHIP OR CONSERVATORSHIP?
Some individuals are able to make responsible decisions in some but not all areas of their lives. In such a situation, a guardianship or
conservatorship will be limited by the Probate Court to only those areas in which the person does not have the capacity to make a
• WHAT IS A TEMPORARY GUARDIANSHIP OR CONSERVATORSHIP?
A temporary guardian or conservator may be appointed without a hearing by the Probate Court in a medical emergency or when an
already appointed guardian or conservator is not effectively performing his or her duties and an immediate action is necessary.
• WHEN IS IT NOT NECESSARY TO HAVE A GUARDIANSHIP OR CONVERSATORSHIP?
Not everyone who is incapacitated needs a guardian or conservatory. In some cases someone may already have the legal authority to
make decisions on behalf of that person by the following:
A living will
Powers of attorney for health care
A living trust
A durable financial power of attorney
How do I file for a Petition for
• Who may file a petition?
A guardianship must be filed where the protected person lives. If the protected person has moved to another county, whether they are
in a nursing home, group home or hospital, the petition must be filed in that county.
The petition may be filed by the protected person himself/herself who appoints a guardian to oversee his/her legal affairs. The petition
may be filed by a facility providing care for the individual or by any interested person who has an actual and substantial interest in the
Anyone who has capacity to form a preference may nominate his/her own guardian or conservator. This nomination may be in writing,
by an oral request to the court during the hearing, or may be proved by other substantial evidence.
• Filing a petition:
In order for a guardian or conservator to be appointed, a petition must be filed in the circuit court or county commission of the county
where you and your child reside. Guardianship procedures vary from county to county. The person petitioning must simply qualify as a
suitable citizen whether family or friend, and demonstrate to the Commissioner suitability to exercise his/her duties as a guardian. The
first step to obtaining guardianship is completing the application packet from the circuit clerk or county commission. The name of this
form is Guardian Conservator. There is a $8.00 cost for this form. When all paperwork is completed an evaluation from the doctor or
psychologist is needed to determine incapacity, then the application will be submitted and a $125.00 filing fee (check with your local
circuit clerk as the rates may have gone up) must be paid. The person filing this petition is responsible for the filing fees, fees for
services of process, and copies of the court records. The clerk will tell you how much these fees amount to. However, anyone who is
determined to be financially unable to pay for these fees will not be required to do so. To have the fees waived you must verify your
income by completing an Affidavit of Indigency. You can obtain this form from the circuit clerk's or county clerk's office. If you cannot
afford to pay the court fees, a circuit clerk who will review the financial information in the Affidavit will determine whether you will
qualify for a waiver of all court fees and costs.
If necessary, the circuit clerk or county commission can provide assistance in completing the petition, however, if a legal question or
issue needs to be answered, you must consult an attorney for advice. Once the petition is filed, the court will schedule a hearing. Your
child and other immediate family members will be notified. The court will appoint a defense attorney to represent your child at the
hearing. At the hearing a judge or Mental Hygiene Commissioner will be appointed to preside over the hearing and will appoint a
guardian and/or conservator if the evidence shows the individual to be incapacitated.
Filing a Petition for Guardianship
• Procedure for appointments of guardians and conservators of a protected person:
1. File a petition with the circuit clerk's or county commission office.
a. Evaluation report by a licensed physician or psychologist.
b. A statement of financial record.
2. Upon filing the petition the court will issue a Notice of Hearing date within 60 days
A Petitioner and persons named in the petition will receive notice not less than 14 days before the hearing.
3. Court will appoint a legal counsel for the protected person.
4. Protected person will have the right to an independent expert of his/her choice to conduct an evaluation.
5. A judge or Mental Hygiene Commissioner will be appointed to hear the case
6. Place of the hearing is determined. Location must be where the protected person resides
7. Who attends the court hearing? The protected person and anyone named in the petition. The protected person also has a
right to oppose the petition, be represented by counsel, present evidence, provide his/her own witnesses and cross-examine all
8. If the court decides the protected person needs a guardian or conservator, one will be appointed at this hearing.
9. A person found incompetent under the West Virginia State Law has the right to appeal to the Circuit Court of the county.
There are other choices besides
Alternatives to guardianship:
• Representatives or substitute payee
• Case management
• Health care surrogate
• Durable powers of attorney for property
• Durable powers of attorney for healthcare
• Living wills
• Community advocacy systems
• Joint checking accounts
• Community agency/services
What is a Letter of Intent
Guidelines to write your own Letter of Intent
What Information Goes Into the Letter of Intent?
• How can you summarize the life of a person you have watched grow and develop over many years? What can you
say that will give insight into and perhaps touch the heart of a care-provider who must suddenly assume some
measure of responsibility for your son or daughter?
• Basically, the procedures for developing a Letter of Intent are fairly simple. You can write the Letter out longhand,
or you can use a computer or typewriter. Don't worry about perfect spelling or grammar; your major concern is
that anyone who reads the Letter in the future can understand exactly what you meant and what you would like to
see happen in your son or daughter's life. Begin by addressing the Letter to "To Whom It May Concern." In the first
paragraph list the current names, addresses, and telephone numbers of the people who should be contacted if
anything should happen to you (i.e., other children, case manager, your son or daughter's school principal or
employer, lawyer, financial planner, priest, etc.). You might then briefly state the family history; include names,
birthdates, and addresses of family members.
• The Letter will then need to focus in upon seven potentially major areas of your son or daughter's past, present,
and future life. Depending upon your child's needs, these areas may be: housing/residential care, education,
employment, medical history and care, behavior management, social environment, and religious environment.
You might begin by summarizing your son or daughter's background and present status in each of these areas.
Then summarize your wishes, hopes, and desires for his or her "best" future, listing three or four options in each
of these areas. Be sure to discuss your ideas with your son or daughter and to take into consideration his or her
feelings on the future (more is said about this below). The worksheet shown at the end of this article is useful for
this "future planning" step, which may require much thought and planning before you actually begin to write
information into the Letter of Intent.
A Letter of Intent Example
• An Example For Writing a Letter of Intent
• Titling a section of her Letter "Housing/Residential Care," Mrs. Sanders writes that Chris has always lived at home
and had a room to himself. She briefly describes the family home and the articles in the home that give Chris
special pleasure, such as his portable radio.
• She then describes his daily and weekly routine, including the fact that Chris finds great joy in going to dances
each week at the local Arc. She briefly lists his favorite clothing, food, games, and so on. She also mentions that
each year Chris visits his sister for a week in the summer.
• Mrs. Sanders then considers what future living arrangements might be suitable for Chris, and she uses the
worksheet at the end of this article ("Letter of Intent Worksheet") to jot down three options. Before she transfers
these options from the worksheet to her Letter of Intent, she discusses each one with Chris. She does so because
he needs to be a key member of the team planning his future life.
• Following her talk with Chris, Mrs. Sanders lists the agreed upon information in her Letter of Intent. The first
option she lists is the possibility that Chris might live with his sister. As a second possibility, he might live with an
old family friend. The third option is residence in a group home. Because this last option may indeed be the one
that is finally selected for Chris, Mrs. Sanders takes care to describe the type of group home she thinks he would
enjoy. As a mother and lifelong friend to Chris, she sees past his limitations to his strengths, and she notes these
down in some detail. Lastly, she expresses her desire that the group home will give him room to grow and build
upon those strengths.
• "Residential Care" is just one important area for Mrs. Sanders to cover in her Letter of Intent. It takes her a week
to complete the other sections. She finds that describing the past is not nearly as difficult as considering the
future, but she methodically and systematically works her way through each area, using the worksheet when
planning is necessary. The end result is a Letter of Intent that is twelve pages long, handwritten. She feels
comfortable that anyone picking up this Letter of Intent will have a head start in getting to know and care for
What do I do with my Letter of Intent?
• What Happens Once the Letter of Intent Is Written?
• Once you've written the Letter of Intent about your son or daughter, the first, most
important thing to do is to let people know that there is a Letter of Intent available
to be consulted. This might mean telling your other children (or relatives,
neighbors, friends, workshop director, pastor, or case manager) why you have
written the Letter, what type of information it contains, and where the Letter can
be found. Put the Letter in an easily accessible place, and make it clearly
identifiable. Many parents also make copies of the Letter and give it to their other
children (or persons such as a neighbor).
• Secondly, you should update the Letter on a regular basis. Select one day out of
each year (such as the last day of school or perhaps your son or daughter's
birthday) where you will review what you have written and add any new
information of importance. Talk with your child each time and incorporate his or
her ideas. After each addition, sign and date the Letter. Should something change
in your son or daughter's life, such as his or her caseworker or the medication he
or she is taking, update the Letter immediately.
• CONTACT INFORMATION:
• Fayette, Lincoln, Logan, McDowell, Mercer, Mingo, Raleigh, and Wyoming Counties
• Legal Aid Offices
• Beckley (304) 255-0561
• Fayetteville (304) 574-2850
• Hamlin (304) 824-7634
• Logan (304) 752-4178
• Pineville (304) 732-8441
• Princeton (304) 487-1463
• Welch (304) 436-8476
• Williamson (304) 235-6751
• Boone, Clay, Kanawha and Putnam Counties:
• Legal Aid Society of Charleston (304) 343-4481
• Clay (304) 587-4668
• Madison (304) 369-4939
• Winfield (304) 586-4239
• Barbour, Marion, Monongalia, Preston, Taylor and Tucker Counties:
• All other counties:
• West Virginia Legal Services Plan
• Charleston (304) 342-6814
• Clarksburg (304) 623-6649
• Huntington (304) 697-2070
• Lewisburg (304) 645-3131
• Martinsburg (304) 263-8871
• Parkersburg (304) 485-7522
• Wheeling (304) 232-1260
• Lawyers referrals:
• West Virginia State Bar Lawyer information service
• Tuesday evenings only from 6:00 - 8:00 800-642-3617
Good Web addresses
• Web sites:
What is Guardianship/Resources for family guardians
Autism Society of American
Planning for Children with Autism
Save Wealth Estates
Planning your estate
Information for this Power point was provided by:
Planning for the Future, Protective Life Insurance Company, West Virginia Guardian and
Conservator Handbook, Black's Law Dictionary, The Special Needs Trust by Richard W. Fee with
the National Institute on Life Planning for Persons with Disabilities. The West Virginia State Code
Chapter 42, West Virginia Guardianship and Conservator Act, Chapter 44A of the West Virginia
Code, Autism Advocate (ASA) No.4, 2006, Web sites and life experiences.