In This Issue
- Giving Tika A Reason to Smile: Overcoming Housing Discrimination
- HCBS Report
- The Guardianship Process
- Dear Advocate: Avoiding a Social Security Overpayment
Giving Tika A Reason to Smile: Overcoming Housing Discrimination
After the birth of their second child, Tika’s landlord insisted that his family couldn’t occupy a single-bedroom apartment anymore and that they should move into a two-bedroom unit.
The Timsinas paid an additional $600 deposit and signed a new lease for a two-bedroom unit, however after doing so, the landlord simply ignored them and moved other families into the available units while refusing to return their money.
When Tika confronted the landlord about being moved into a two-bedroom unit, he was told that their current unit needed a pest inspection before they could move. After conducting several inspections, the landlord insisted pests had been detected and said the Timsinas could not move to a new unit until they paid half of the extermination cost—an additional $650 to the already-paid deposit. Reluctantly, Tika paid the fee, however, the months continued to pass and the Timsinas were never moved to a new unit. Feeling hopeless and scared of eviction, Tika contacted the Disability Law Center (DLC).
“The landlord was unwilling to work with Tika on a personal level,” explains Nick Jackson, Fair Housing Attorney at the DLC. “We investigated [the] landlord and found that other people of Tika’s race and ethnicity and refugee status had been subjected to the same treatment so we believed that there had been unlawful discrimination [and] we filed a complaint on Tika’s behalf with the state of Utah.”
In mediation, the DLC was successful in having the initial deposit returned and the Timsinas decided to move away from the complex when their lease expired.
Several months after leaving the complex, Tika received a notice from the landlord demanding $800 for attorney fees acquired during the mediation process. Again, Tika reached out to the DLC for help. After making several attempts to convince the landlord to dismiss the fees, the DLC filed a complaint on Tika’s behalf with the U.S. Department of Housing and Urban Development (HUD). The Department sided with the DLC and awarded Tika a settlement.
As a result of their experience with their discriminatory landlord, the Timsinas were motivated to find the means necessary to purchase a home to avoid ever experiencing the same situation again. “I think the DLC is a reason to smile,” says Tika, “because they resolved this case. I’m happy now. I’m proud to say that the DLC has done a wonderful job for people like me.”
Watch Tika’s story at https://youtu.be/NAnXyp7GGvM.
At the Disability Law Center, we advocate for the full inclusion of people with disabilities. This is an integral purpose of our organization and a deeply held conviction by staff witnessing the heartache of needlessly restricted lives and the awakening that can occur when these lives become integrated.
People with disabilities must have choices regarding where and who they live with, as well as opportunities to be independent, make decisions about their daily lives, and actively participate in their communities. We applaud the Centers for Medicare & Medicaid Services for developing the new Home and Community Based Services Rule. The Rule requires states to develop a system of services where people with disabilities have real opportunities to live, work, and play in our community. Utah must effectively plan for, fund, and implement this improved service system before 2019. Failing to do so could disqualify providers from receiving funding, leaving people without needed supports and with even fewer options.
We recently released a report (available at http://bit.ly/1TxKnNX) that summarizes a year-long assessment of Utah’s efforts to comply with the new rule and found that despite the best intentions of providers wanting to provide the highest quality services, current systems don’t support the needs and desires of consumers to be involved with and contribute to their communities.
Given the extensive changes that must take place and the lack of progress Utah has made, we are concerned that the State will not reach compliance by 2019. There is, however, still time if leaders emerge ready to innovatively tackle difficult issues.
The Guardianship Process
One of our more popular requests at the DLC, is for information about guardianship. By law, once a person turns 18-years-old, they’re considered competent to make decisions about their life. These decisions include medical, financial, employment, education, housing and other choices. Sometimes, parents, siblings, spouses, etc. feel that they need to help their adult family member with a disability or aging parent with those decisions.
In order for anyone to legally make decisions for an adult, a court must appoint them to do so. There are several options, such as, a conservatorship, power of attorney, advanced health care directives, default surrogate health care decision-makers, trusts, etc. Guardianship is a more restrictive option to consider only when necessary. Sometimes it is the best fit for someone who is more incapacitated.
Maybe you have questions about the guardianship process too. As a starting point, this article provides answers to some basic questions. For the purposes of this article, “you” refers to the person wanting to become a guardian and “family member” refers to the person who might need a guardian. Of course, it is not necessary for a guardian to be related. We’re just trying to keep it simple.
Steps in the Guardianship Process
- Obtain the forms you’ll submit to the court. These can be found on the Administrative Office of the Courts website (https://www.utcourts.gov/howto/family/gc/guardianship/index.html). For a simple checklist of forms you’ll submit with your petition and forms you’ll bring to court, visit http://bit.ly/1SAueYp.
- Complete the forms and gather the medical information that needs to be submitted with the forms.
- File a petition with the Court by submitting the completed forms and medical documentation to the Office of the Court in the county where your family member resides or is present. Pay the filing fee.
- After filing, the Court will send notice to parties of interest identified in the law, such as, a current guardian, parents, spouse, etc. The Court will also send you and the interested parties a notice of an initial hearing date and time.
- Attend the hearing and bring the necessary documents.
- Each district court may proceed a little differently. Generally, at the hearing, the judge will find out if there are any objections to the guardianship. The judge may ask for limited evidence and testimony about your family member’s diagnosis and their ability to make decisions.
- If there are no objections and sufficient documentation is provided, an order appointing you as guardian will likely be issued at the hearing, making the guardianship effective immediately.
Will I Need to Hire an Attorney?
It’s up to you whether or not you want to represent yourself or hire an attorney to file the petition and represent you at the hearing.
For your family member, the decision about whether they require legal counsel is made by a judge. The law has traditionally required that the family member you are seeking guardianship of (sometimes referred to as the “proposed ward”), be represented by counsel. However, beginning this year, judges have the authority to waive your family member’s right to counsel if (1) the proposed ward is the biological or adoptive child of the petitioner; (2) the proposed ward’s estate is not more than $20,000; (3) the proposed ward appears in court; and (4) the judge decides that representation of the proposed ward is not necessary to protect their interests.
Waiver of counsel will not likely be freely given because a guardianship takes away an individual’s important rights. Since the judge will decide at the beginning of the case whether to waive your family member’s right to counsel, it is important that you submit adequate medical/ psychological information when filing your petition. The judge will likely NOT waive your family member’s right to counsel if: 1) they understand the proceedings and they want an attorney, or; 2) they object to, or don’t like all the areas where you want to make decisions for them.
There is free or low cost representation available for your family member through the Guardianship Signature Program. More information about this in “Resources”.
How Can I Obtain Medical Documentation?
The medical documentation that you’ll submit with your petition can be a letter—written in the past year—from your family member’s treating physician, psychiatrist, psychologist, or licensed clinical social worker. It can also be a recent psychological evaluation. The documentation should identify your family member’s diagnoses, their functional limitations, and the types of decisions they are not able to make. If your family member is still in school or just graduated, there should be a recent enough psychological evaluation in their school files. Individual Education Programs (IEP’s) and other school evaluations, can also be helpful in showing what the individual can and cannot do. If your family member has received mental health treatment, there may be some evaluations or other useful reports, in their medical files. If they receive services from the Division of Services for People with Disabilities (DSPD), there should be psychological evaluations, person-centered support plans, and other useful reports in their files.
How Much Does It Cost?
Normally, the filing fee is $360, but if your family member is your natural or adoptive child then the fee is only $35. The court may also wave the filing fee if you or your family member is indigent.
Are There Different Types of Guardianship
Yes! Guardianship should be customized to your family member’s needs. A limited guardianship, preferred by the law, specifies certain types of decisions you can make as a guardian. For example health care, residential, educational, or financial decisions.
A full (plenary) guardianship is granted only when nothing less will meet your family member’s needs. Full guardianship grants you the right to make all the decisions a parent would make for a minor child. The court should only grant a full guardianship when evidence supports the need for one.
Are There Resources to Help?
Guardianship Signature Program (GSP) – This program provides free or low-cost representation for the proposed ward. It’s the Court’s responsibility to ensure that your family member has appropriate legal representation. Therefore, if your petition does not say who’ll represent your family member, or your petition includes a request that the court appoint your family member an attorney, the court clerk will send an e-mail to lawyers in the district who are part of the GSP. The first lawyer to respond is appointed as your family member’s counsel.
Disability Law Center – We can provide basic information about the rights of people with disabilities and guardianship law. We’re happy to help you connect with local resources. However, we cannot represent a petitioner or a proposed ward in guardianship proceedings, nor can we offer specific legal advice about your guardianship situation. Please feel free to call us, or visit our website where we’ll continue to provide additional information, links, and resources about guardianship.
Dear Advocate: Avoiding a Social Security Overpayment
I’m thinking about going back to work, but I’m nervous about how this might affect my Social Security benefits. I’ve heard people sometimes end up with overpayments and I really don’t want to find myself in that position. Do you have any advice on how to avoid an overpayment with the Social Security Administration (SSA)? – Sincerely, Wanting To Work
Dear Wanting to Work,
This is a great question! Many social security beneficiaries worry about overpayments as they try to return to work. Let me give you an idea of what you need to know about working and overpayments.
First, an overpayment happens for any month that you receive more money from SSA than you should have been paid. Depending on whether you are on SSI or SSDI – or both – this can happen in a number of ways. Overpayments can occur for the following reasons:
- you go back to work and/or have an increase in income
- your living situation changes
- you get married or divorced
- you have more resources than SSA allows
- you are no longer disabled but continue to receive benefits
- you do not report a change to SSA
- SSA incorrectly figures your benefits because they do not have complete or correct information about your situation
It is very important that you report any change in status to Social Security right away – especially information about income from work. It is also wise to keep record of the report. For example, if you send Social Security paystubs or other verification of employment, be sure to make a copy for your own records. Even if you take something directly to a Social Security office, always ask for a receipt.
Another valuable tool you should know about is Utah Work Incentive Planning Services (UWIPS). UWIPS helps people on Social Security disability benefits understand how going back to work will impact their benefits – including Social Security, Medicaid, Medicare, food stamps, housing, etc. You can meet with UWIPS for free if you receive Social Security benefits. You can find contact information for UWIPS at http://www.workabilityutah.org/work/bpao.php.
Working will impact your benefits differently if you are on Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI). It is very important to know what program you are on and how working will impact your unique benefits situation. UWIPS is a great resource to understand everything you need to know about returning to work.
Social Security offers a wide range of work incentives to assist beneficiaries who want to return to work. Work incentives can lessen the impact of work on Social Security benefits. You can find all the information you need to know about work incentives on SSA’s website at https://www.ssa.gov/disabilityresearch/wi/detailedinfo.htm.
If you are able to return to work, I would highly encourage you to give it a try! Working is good for our health and well-being. It contributes to our happiness, helps build confidence and self-esteem, and rewards us financially.
There are many resources available to help you know how working will impact your benefits. If you take the time to fully understand SSA’s work rules, you should be able to avoid an overpayment.
If you find yourself overpaid, the Disability Law Center can help. We can meet with you to review your overpayment and tell you about your appeal options. In some cases, we can help you through the appeals process.