WTOP: 5Qs with Kimberly Skiba-Rokosky: How to protect your family’s vulnerable adults
January 23, 2023
January 18, 2023, 1:07 PM
Even before she started law school, Kimberly Skiba-Rokosky knew that she wanted to work with families and to tangibly make a difference in people’s lives.
But the path to the law she practices now at Shulman Rogers — a mix of divorces, family law, estate and trust litigation, and conservatorships and guardianships, particularly for disabled young adults and the elderly — evolved over time.
It’s a good balance between chaos and calm, Skiba-Rokosky says. And though “it sounds so cliché, it’s nice to be able to help people.”
Sometimes her work involves challenging moments in the conference room and courtroom, as contested divorces or guardianships can become heated and litigious. It requires being tough, sometimes aggressive, but kind, she said.
WTOP asked Skiba-Rokosky to talk about the legal needs of families with both young adults and elderly family members with disabilities and how to avoid pitfalls when ensuring continued care for them.
Q1: Can you talk about the special legal needs that a family should consider if they have a child or elderly adult with a disability?
Skiba-Rokosky: The most common issues that I encounter involve challenges for young adults who are in that 18- to 20-year age range. Parents become so accustomed to being the decision-maker for a minor child, especially a special needs child, that when a child turns 18, the parents are not thinking about the fact that the child is, in the eyes of the law, a legal adult.
What ends up happening is that, all of a sudden, providers — such as doctors and residential treatment facilities — stop communicating with the parent, who without further action, is no longer the person legally able to make decisions. Often, that’s where I come in.
It is amazing, though, because I have encountered some parents who have been able to navigate for several years after a child turns 18 — without a guardianship, conservatorship or power of attorney — just on providers turning a blind eye and not really questioning.
But when the lack of legal authority to make decisions becomes an issue, it usually becomes an immediate issue, because the parents are trying to do something critical, and they don’t have legal authority to act. I see this often when parents need to transition a disabled young adult from living at home to living in a group home or somewhere else.
Parents of disabled children are oftentimes so worried about, and rightfully so, providing care and getting the services in place while the children are minors that the parents don’t think about what happens when the children turn 18 from a legal perspective. The parents also may not think about, or act on, what happens down the road when one or both of them can’t care for the disabled adult.
I also see a similar problem with disabled and elderly adults. People do not really think through what will happen if and when they cannot make their own health care and financial decisions. And so they’re not establishing powers of attorney before they become incapacitated. Then, there’s nobody who can legally make a decision for the adult without another family member or friend going to the court to have a guardian and conservator put in place.
Every adult should have a financial power of attorney, an advanced directive or healthcare power of attorney, and a will, because a number of problems will be prevented by having these documents in place.
Q2: What’s the most critical advice you would give people?
Skiba-Rokosky: The main thing is, to the best that folks can, think ahead. And I know that’s so difficult. I have two young, healthy children, and I know firsthand that just getting through the daily routines with young kids while meeting our other basic obligations doesn’t leave a lot of time for much else.
But to the extent that you can, think ahead and talk to others about what services are available. I’ve been pleasantly surprised that a lot of the school systems in the D.C. metro area have special education teams that are willing to talk to parents about the different options that are available. Many local counties have good resources. The parents just have to know to look for them and then take the precious time to do so.
The same is true for disabled older adults — plan ahead. When issues arise, there often needs to be a quick response, but parents or other family members cannot act because the now-incapacitated adult has not thought about such circumstances in advance.
Q3: Are there different factors to consider for young adults versus the elderly?
Skiba-Rokosky: I’ll start with the elderly. The trend that I’m seeing is that folks are needing long-term care a lot longer, especially with dementia. Someone could end up suffering from dementia, and otherwise be healthy, and live a very long life but not be able to care for him or herself.
For all of us, before we age, that means really looking at our financial means and what we have in place legally, not just waiting until we fall ill or become incapacitated. Legal adults need to be thinking, “If I need long-term care, how am I going to be able to afford this?” Because the reality is long-term care is very expensive. Providing care for an adult, especially if he has dementia and needs 24-hour care in a secure facility or at home, is incredibly expensive in the D.C. metro area. So, thinking about those things for all of us in advance is really important.
In terms of the younger crowd, especially in the 18 to 24 age range, the thing that I say to my clients, often parents or other family members of the young adult, is to look at what’s available in terms of types of services. I’ve had so many families be very lucky to be in counties with good services — if the families are aggressive about finding the services and putting provisions in place to be able to make the best decisions for their loved ones.
I see so many families that just do not think ahead. Let’s be honest: Nobody can anticipate every single thing that will happen, but recognizing that a child’s status is going to change legally at 18 is really important.
Q4: Once you have your plans established, should you regularly review them for possible updates or changes?
First, here’s a bit of terminology for context. In Virginia, you’ll hear the words “guardianship” and “conservatorship” used. The guardian is the person who makes the incapacitated adult’s health care decisions, the residential decisions and so on pertaining to the person’s “person.” The conservator is the individual who makes the financial decisions and manages the finances for the incapacitated adult. A lot of the time, that person is one in the same.
In Maryland, we use slightly different terminology. In Maryland, the court can appoint a “guardian of the person” and a “guardian of the property.” Maryland does not use the term “conservatorship.” The conservator in Virginia is the equivalent of a guardian of the property in Maryland, and a guardian in Virginia is a guardian of the person in Maryland.
For the adult who has put an estate plan, including a financial power of attorney and a health care power of attorney, in place to avoid the need for a guardianship or conservatorship, that adult should at least review the documents every few years while he or she remains capacitated to make sure that there are no changes that need to be made. Perhaps a named agent is no longer the right option or the adult’s views on long-term care arrangements have changed. It is important to remember that, once a person loses capacity, he or she cannot update estate planning documents.
If the plans are put in place by a court, there will likely be upkeep required by the fiduciary, the guardian or conservator who has been appointed, for example. For instance, in Virginia, conservators, depending upon the value of the money over which they are responsible, have annual reporting requirements to a commissioner of accounts.
There will also be what I call “practical upkeep.” The fiduciary will want to regularly evaluate expenses and income to ensure that the incapacitated adult’s resources are being used most efficiently.
With benefits such as Social Security income and Social Security disability income, there may not be annual maintenance required once eligibility is determined. The recipient will receive cost of living adjustments each year automatically, but the family will be obligated to check in with the Social Security Administration periodically.
It is advisable to look at residential arrangements, both for young adults and for the elderly, on at least an annual basis. “Is my loved one receiving the right care, the highest level of care that makes sense given the circumstances?”
Really, though, the critical piece is getting the plans in place. Then, the maintenance is mostly practical. Again, once somebody is declared incapacitated, he or she will not have the ability, from a legal perspective, to update estate planning documents or to make decisions. Once incapacity occurs, the agent under the power of attorney, or the guardian and conservator, if the court has to get involved, will make all decisions.
Q5: And what happens if a change is needed in the person who is serving?
Skiba-Rokosky: That’s something that is particularly important when you have disabled young adults. I always tell parents when I’m helping them obtain guardianship over their younger adults that they need to think about what happens when they, as the parent and now the guardian, can’t serve anymore, because it will likely happen at some point, as much as the parents would prefer not to think about it.
I remember one case that began in 2017, in which I assisted a family to establish a guardianship and conservatorship for their younger disabled adult. While we were going through the process, I said early on to the older parents, “Let’s think about what happens after you can’t serve.” They responded: “Oh, that’s not going to happen for a while. We don’t need to put those provisions in place.”
Only a couple of years after the guardianship/conservatorship was established, both parents’ health began to fail. The family has now spent a considerable amount of money and it has taken a number of years to straighten out the mess. Planning ahead could have avoided all of this.
In my opinion, the worst possible thing that could happen for a disabled adult, particularly a disabled young adult, is for there to be a disruption if the adult loses a parent who has been contributing to, or managing, their care the whole time. As a parent myself, I would feel so much less anxiety knowing that, if I am not going to be able to make the decisions, I have made provisions for somebody else to do so.
About Kimberly Skiba-Rokosky
- 17 years as family and fiduciary litigation lawyer
- Licensed to practice law in Maryland and Virginia
- Mom to a 5-year-old and 1.5-year-old
- Earned her law degree at the University of Richmond
- Has a bachelor’s of science in psychology from Boston University