A microboard is a nonprofit organization established for the sole purpose of organizing support for a single individual with a disability. Attorneys who counsel families with special-needs members should understand the microboard as a possible component of the family’s long-term planning.
The first microboards were created to mobilize resources to help the disabled individual live a life integrated in the community. The idea originated as a way to fill the gap between services the individual received from the school system and services he or she received from Medicaid waiver programs, for which the waiting list can be long.
Medicaid waiver programs pay private providers for services furnished to the person with a disability. Social Security Act §1915(c) authorizes Medicaid waiver programs, such as Home and Community-Based Services (HCS) and Community Living Assistance and Support Services (CLASS), which in Texas are administered through the Texas Department of Aging and Disability Services.
Microboards now can become their own Medicaid waiver providers, receiving state funds to apply to the care, education and training of the individual with the disability.
Creating a microboard begins with gathering individuals concerned with the future of the individual with a disability, who is called the focus person. Microboard members can include family members, friends, church members, teachers, therapists, neighbors, etc.
A facilitator conducts what’s called a Planning Alternative Tomorrows with Hope (PATH) meeting. The meeting is a brainstorming session that creates a visual record of the expressed hopes and dreams for the focus person, and it becomes the road map for the microboard. Most people, including those with disabilities, want a job, independent living and a special someone with whom to share their lives. All of these can become part of the road map. The PATH incorporates a timeline for achieving the focus person’s goals and assigns tasks to specific individuals so the microboard can track progress.
In many circumstances, it would be useful to have an attorney knowledgeable about Medicaid rules present at the PATH, to make sure the plan put forward does not jeopardize the focus person’s Medicaid eligibility; raise potential liability issues for proposed microboard actions; and give general advice on real estate title issues, property insurance, tax treatment of contributions to the microboard, etc.
The legal aspects of formation and maintenance of a microboard, as well as the lengthy and complicated process of helping the microboard become a Medicaid waiver provider, are beyond the scope of this article, but Texas Microboard Collaboration can provide assistance. The same is true of the role microboards can play in facilitating microenterprises — businesses run by entrepreneurs with disabilities for whom maintaining Medicaid eligibility is important.
Piece of the Puzzle
Parents and attorneys need to explore the possible roles for a microboard in the parents’ estate plans. The microboard’s formality and corporate structure can train and educate members; strengthen ties between the focus person and members, as well as among members; and create a model for support and advocacy that will outlive the focus person’s parents. The microboard can provide oversight of care for the focus person, as well as coordinate services and benefits and continue to explore improved work and social opportunities for him or her.
The microboard also can play a role in the appointment of a guardian for the focus person. No court in Texas has appointed a microboard as a guardian to date, and that is not likely to occur. Typically, judges want to appoint an individual who is answerable to the court.
However, the microboard could recommend an individual for guardianship. Many parents think the next generation (other children, nieces or nephews) eventually may be good guardians for their adult disabled children, but those family members could be too young to serve in those positions. The microboard could evaluate potential guardians’ maturity when the focus person needs a successor guardian.
Parents also naturally are concerned that the best-intentioned individual guardian may be subject to outside influence or financial pressure to make decisions not in the ward’s best interest. For example, parents may place an adult disabled child in a private residential facility and sufficiently fund a special-needs trust to provide for lifetime care. After the parents die, a court appoints a sibling guardian, who then removes the ward from the private-pay facility to a lower cost personal-care home to preserve assets in a trust for the remainder beneficiaries, who happen to be the guardian and his or her descendants. A nonprofit entity whose sole purpose is to support the ward on his PATH is unlikely to allow this to occur. Creating a microboard can assure parents that someone would be paying attention to the focus person’s needs.
Another significant role for the microboard in the estate plan would be as trust adviser. Lawyers often correctly advise parents to consider corporate management of special-needs trusts for their children who have disabilities. That corporate management can eliminate conflicts of interest of a trustee who also is a remainderman; provide continuity of management; and relieve the trustee-family member of the responsibility of asset management, reporting and accountability and of keeping current with the ever-changing Medicaid rules. Parents often worry about leaving their child’s future with an entity with which they have had or will have little or no contact.
A way to ensure consideration of the child’s best interest is to designate the microboard as trust adviser with clearly defined authority. Those setting up the microboard can give it power to authorize all expenditures exceeding a designated amount or require it to oversee all records and accountings of the trustee. However, it is best to limit the microboard’s authority and create no duties that may put it in the capacity of a fiduciary.
Family members and friends of the focus person generally comprise the microboard. It is wise to draw a bright line between the responsibilities the corporate trustee is paid to handle and the generally volunteer duties requested of microboard members.
In most cases, the best course of action is to make sure the microboard has authority, but not a duty, to review records periodically, and if things are not going well, to fire the corporate trustee and appoint a successor. If the trust company stops providing personal attention to clients, the microboard can find a better trust company. Although a guardian can serve as trust adviser, parents often are more comfortable with the collective judgment of their committed microboard members in selecting a trustee.