What happens when a parent can no longer provide personal care for a disabled child because of disability or death? Who will the child live with? Who will manage the child’s personal and financial needs?
Parents are considered the natural guardians of their children only until they reach the age of majority, most often at age 18. Parents of a disabled child are the natural choice to serve as legal guardians. Unlike parents of competent adult children, parents of disabled children need to plan for what happens when they can no longer care for their child.
For example just because you made a verbal agreement with a brother, sister or older child to care for the disabled child should anything happen to you does not give them the formal authority to act on behalf of that disabled child. Those that agreed to care for the child will have to pursue with the assistance of an attorney a formal Guardianship through the courts. Before making any such agreement with a family member or friend, for that matter, there are many considerations, such as, the ability of that individual to handle financial matters, his or her age and health and, lastly, the ability to devote sufficient time to care for the special needs person.
Basically there are two kinds of guardianships, either guardian of the person and or, guardian of the estate. The guardian of the person makes decisions as to where the disabled child lives and sees to medical treatment, education, vocational training and other personal matters.
The guardian of the estate is responsible for all of the financial matters for the special needs child. In certain instances depending upon the assets involved an individual may choose to engage the services of a trust company to serve as guardian of the estate. But as I have written before, serving as guardian of the estate should be implemented as part of an overall estate plan where a trust is established to provide the vehicle for financial management.
Even though it is perfectly okay to choose one person to act as both guardian of the person and guardian of the estate one person may not have the acumen to serve as both. A co-guardianship can combine the personal attention of a family member with the knowledge of a professional corporate trustee.
As an alternative to a guardian of the estate many parents establish what is commonly referred to as a special needs trust. The special needs trust provides much more structure than a guardianship. Properly drafted, a special needs trust enables a parent to establish a trust that can hold an unlimited amount of assets, without these assets impeding qualification for government programs or benefits that the disabled individual would otherwise qualify for. It also gives the parent more control over how the monies are handled once they are no longer managing their child’s affairs.
I hope this article has provided some food for thought!