Transferring
Responsibility in the Event of Your Absence
by
Herbert D. Hinkle, Esq.
Herbert D. Hinkle
Law Office
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
How can siblings and other family members help the parents of a person
with a disability? One way is to be prepared to take over when the
parents are no longer able to be actively involved with the care of
the person with a disability.
When the parents
die or become incapacitated, it will be necessary for someone to succeed
them. There will be several jobs to fill:
A. Successor
Guardian. If the person with a disability is mentally incapacitated
(or under the age of majority), it is necessary to have a guardian
to make whatever decisions that might arise. Successor guardians should
be named in a Will.
B. Trustee.
Parents should establish a living trust for the benefit of the person
with a disability. Usually, but not always, the trust will be funded
at the death of both parents. The trustee is the person, persons or
organization appointed to manage the assets in trust. The trust must
have a variety of restrictions placed upon the use of funds to avoid
interference with eligibility for key programs.
C. Temporary
Guardian. New Jersey law specifically provides that a temporary
guardian can be appointed to serve under a Durable Power of Attorney
in case the guardian will be away or incapacitated. Usually a Durable
Power of Attorney is part of a larger estate plan. In Pennsylvania
it is a good idea to include this anyway.
Ideally, when
someone steps in for the parents, he or she should be knowledgeable
about the person with a disability and about key services and benefits.
Therefore:
- Keep potential
successors informed, and encourage them to join service/consumer
organizations. Such organizations can be a great source of ongoing
information.
- Keep an updated
letter of instruction, like that on the author’s website.
A care plan prepared by an organization like Planned Lifetime Assistance
Network, Inc. (PLAN) can be of great help.
- Invite the
successor to IEP or IHP meetings and to visit programs so that they
have first hand knowledge of how the system works.
Herbert D. Hinkle,
and his colleagues, Ira M. Fingles and S. Paul Prior, maintain a statewide
law practice with offices in Lawrenceville, Marlton, and Florham Park,
New Jersey, and Yardley, Pennsylvania. They lecture and write frequently
on topics of law, aging, disability and estate planning and are available
to speak to groups in New Jersey and Pennsylvania
at no charge.
Comments and suggestions
for future articles should be mailed to: The Law Offices of Herbert
D. Hinkle, 2651 Main Street, Suite A, Lawrenceville, New Jersey 08648-1012.
Copyright 2003
Herbert D. Hinkle. All rights reserved.
