The following are some legal actions to consider if you believe your child may be unable to care for themselves or may experience significant delays upon reaching adulthood.
A guardian is appointed by the probate court in order to make personal and medical decisions for an adult who is unable to make or communicate appropriate decisions.
A conservator is appointed by the probate court in order to take care of financial matters for a person (minor or adult) who has assets that are likely to be wasted due to the person’s inability to make appropriate decisions concerning their own finances.
Going full guardianship refers to someone, generally a parent, guardian, or family member, that goes to court to recieve full legal autonomy over an adult who is unable to make legal, personal, medical decisions due to disability, illness, or incapacity.
Going full conservatorship, often referred to as plenary conservatorship, relates to a conservator that has received complete court-granted control over all financial decisions and property management for the person of interest. This can occur for a variety of reasons, including:
The following resources provide information on how to apply for guardianship and/or conservatorship:
When a minor is approaching adulthood, the process for guardianship for a disabled minor can start as soon as they’re 17 years and 6 months to take effect once they turn 18.
Without a guardian, your child who has turned 18, will be presumed competent and therefore you can no longer make decisions for that child. You may not be able to get any medical information and your child is legally able to make their own decisions for personal matters.
Without a conservator, your child may be presumed to be competent to make decisions and can spend their money as they please. It may be difficult to undo misguided transactional decisions and therefore may be vulnerable to financial predators.
Estate planning is the preparation of documents that will guide you and/or your family when and if you become incapacitated or when you pass away. You can make written declarations which the probate court will abide by if you plan ahead. Some documentation included through estate planning are Wills, Trusts and Power of Attorney.
Wills are documents which state your preference as to how you’d like your assets (estate) handled after you pass away. You are allowed, in a Will, to name the person you would like to be guardian and/or conservator for your child. You can set aside money for your child in a “Special Needs Trust”.
A Special Needs Trust is a type of trust for a disabled individuals who are receiving governmental assistance which could be impacted by the availability of additional funds. The Special Needs Trust gives the Trustee (caretaker of the Trust) discretion and authority to use funds for the child (beneficiary) or not if it will impact the government benefits. The government cannot force these funds to be used so the Special Need Trust acts like a supplement to the governmental benefits received by the child.
There are two types however: first party and third party
A trust is a separate legal entity created by an agreement between you and the trust on what the trust does and what authority the trustee has. You can set these up while you are living and transfer your assets into it to avoid probate.
Probate is the court process of using a Will to transfer assets out of the name of the deceased person and into someone else’s name.
Living Trusts do not typically need probates (as long as the title to all of your assets have been previously transferred into the trust’s name). Some trust preparers use the prospect of probate as a means to scare people away from Wills. Usually, the cost of the trusts is nearly the same as the cost of a probate. There are good reasons to do a Living Trust, but it shouldn’t be because of fear.
Powers of Attorney are documents that give a person or persons authority to act for the person who signs the power of attorney when they are unable to or if they need additional help. These documents usually provide a broad range of authority for medical purposes or for financial purposes and they usually survive incapacity.
These powers of attorney can be substitutes for guardianships or conservatorships for your child if your child is able to understand them. That would make them much cheaper and efficient vehicles to handle matters for your child. However, if your child signs a power of attorney, your child is not giving up his/her own right to control his/her own actions. Plus the child always has the right to revoke the power of attorney as long as they are still competent.
An ABLE Account is a savings account for individuals with disabilities with onset before the individual turned 26 years of age and who are receiving SSI and/or SSDI.
The idea is that the limitations in money on hand makes the individuals have to spend their money and perhaps wastefully to stay qualified for assistance. The ABLE Account allows the disabled individual to save and to have gifts so that the individual can actually save up for things and/or to have money for other things that are needed.
As of 2018, there is $15,000 limit to contributions in a single year which can come from gifts or from the individual. The first $100,000 does not affect the eligibility for government assistance. After that, states have their own rules but some allow contributions up to $300,000. However, putting more than $100,000 would affect eligibility for SSI recipients who would not get any payments from SSI until the funds went back to $100,000.
Additionally, these accounts, like the first party special needs trusts, are subject to reimbursement back to the government for repayment of assistance. The payments that can be made from the ABLE Account include education, housing, transportation, employment training and support, assistive technology, personal support services, health care expenses, financial management and administrative services and other expenses which help improve health, independence, and/or quality of life.
At some point, you and your spouse may not be able to help your child. There will be sickness, disability and/or death. There must be planning as to who is going to watch over for your child. These decisions are often made in Wills or Trusts as to replacements for you and your spouse. Some people have family members or friends they can rely on. Some people put the funds in the hands of financial institutions which might handle the finances, but they often don’t offer personal service. There are professionals who can step in.
Private Fiduciaries are paid professionals who are licensed by the state to act as fiduciaries for individuals in need. They do get paid, but their services can be invaluable. Of course, you must find the right person for the job and even have a backup in place. Other professionals may also fill the role such as care managers or nurses.