Ask Mike - Designating a caregiver for my brother in a will
Hi Mike,
I have a 54 year old mentally disabled brother who lives with my mother who is 82. My mother is trying to establish care for my brother in case something happens to her. My mother never established legal guardianship for my brother after he turned 18. She felt it wasn't necessary. She claims Social Security told her she didn't have to do because she was my brothers mother. Now she thinks she can designate a caregiver (my nephew) for my brother in a WILL and things will continue on in this manner. She asked my nephew to move into her house to care for my brother if she passes away. He said he would which I don't believe. My mother also wants to put me and my nephews name on the house so that my brother will always have a home. The house is paid for but will require maintenance and property taxes will need to be paid annually. My brother gets SSI and Medicaid.
My Question: Can my mother designate a caregiver for my brother in a WILL and does she need to establish legal guardianship to designate a guardian for my brother in her absence. My fear is that nothing is legal. If something happens to my mother what rights will we have (his siblings & family) to care for my brother? Is it okay for him not to have a legal guardian?
Yours,
Mom's Will
Dear Mom's Will
Thanks for writing. You are concerned about a number of things, but specifically want to know if your Mother can designate a caregiver for your mentally disabled brother in her will and if such arrangement is "legal". Additionally, you asked if it was "OK" for him to not have a guardian.
You are right to be concerned. Your mother can’t just command someone (your Nephew in this case) to provide services and supports in a will. You and other concerned family members should get some professional advice. Sometimes Area Agencies on Aging can assist with things like wills and inheritance/estate planning. Likewise Protection and Advocacy (P & A) Agencies sometimes assist with guardianship/conservatorship issues. If you are interested in taking a look at publicly funded supports for your brother contact your state Medicaid agency.
The PAS Center Website can assist with contact information for all three of the entities mentioned above. Go to Agencies Related to PAS. Next, click on your "state" on the USA map. On the next page are the agencies I mentioned plus links to some other great places to find help such as Centers for Independent Living (CILs).
Finally, there is no requirement, in particular, that your brother have a guardian. The only time a guardianship can be "required" is if it is court ordered; often to protect someone who is a danger to self and others. Laws and regulations governing guardianship vary from state to state. Some states have different degrees or levels of guardianship so that there is a range or continuum of control or restriction asserted by the guardian. In a related vein, a "conservatorship" provides assistance with handling finances and paying bills, only; without otherwise controlling, restricting or supervising the individual. Again, you can ask about all of these issues when you contact the entities mentioned above.
I hope everything works out for you and your family!
Mike