Guardianship and Special Needs Children
Published: 2011-09-22 - Updated: 2022-07-05
Author: Disabled World | Contact: Disabled World (Disabled-World.com)
Peer-Reviewed Publication: N/A
Additional References: Special Education Publications
Synopsis: Establishing a legal guardianship can help protect children with disabilities as they transition to legal adulthood at the age of 18. A guardianship is a legally protected relationship in which a person, the guardian, is allowed to make decisions on behalf of another person. A judge appoints the guardian to act on behalf of someone who cannot manage their personal affairs. While guardianships may be helpful for children with special needs embarking on adulthood, other legal processes exist to protect a vulnerable person's assets. For example, a special needs trust may be established for the protected person through which the assets are owned and managed by an appointed trustee.
- A guardian is a keeper or protector who looks after the welfare of other people or their property. Guardians are often adults who can make legal decisions for children who are not their own. A guardianship is similar to a power of attorney in that both empower an agent to make legal, financial, and/or medical decisions for another person. The appointed individual is often responsible for the care of the ward (the child or incapable adult) and that person's financial affairs. A guardian may also be called a conservator when managing the child's or adult's finances.
Many children with disabilities need specific guidance and assistance to make the best of the world around them. When they turn 18, however, the legal protections they had as children dissolve as they become legal adults. They have new rights and responsibilities, but there may be instances when they cannot make complex decisions and may need someone to help them.
For example, disabled adults may need assistance managing investments, completing tax forms, and seeking legal remedies, if applicable. In these situations, establishing legal guardianship is very helpful in protecting disabled children as they transition to potentially vulnerable adults. This article generally explains guardianships, their establishment, and their benefits.
A guardianship is a legally protected relationship in which a person, the guardian, is allowed to make decisions on behalf of another person. A judge appoints the guardian to act on behalf of someone who cannot manage their personal affairs. Guardianships are commonly used to benefit children, as they legally cannot enter into contracts or make legally binding decisions for themselves. Still, guardianships also can be used to protect disabled or incapacitated adults.
Guardians may help people make or finalize decisions regarding basic needs such as food, clothing, and shelter, as well as more complex matters like medical care and financial decisions. This is especially important for young adults who have never had the responsibility of making important decisions on their own or cannot understand their choices' gravity or long-term consequences.
Under the law, someone at least 18 years old may petition the court to become a guardian. Possible guardians include family members or other caregivers with good character. Two possible guardianships are:
- Guardianship of the property: Permits the guardian to make decisions about the protected person's property and finances.
- Guardianship of the person: Permits the guardian to make decisions regarding the protected person's daily life, such as where to live and what type of medical care to receive.
Based on the circumstances, the court may grant a "limited guardianship" for either or both types of guardianships, allowing the guardian to make only certain decisions, or the court may order a "full guardianship" authorizing the guardian to make all decisions for the protected individual. In some cases, a "special guardianship" is created for the limited purpose of helping the incapacitated person with protective arrangements.
The court will grant the powers necessary to protect the incapacitated person. The person seeking to establish the guardianship bears the burden of proving that the protected person either consents to the guardianship or is unable to provide for their personal needs or property and financial management and cannot adequately understand and appreciate the nature and consequences of such inability.
Another type of guardianship for developmentally disabled people is possible. For a guardian to be appointed under this Act, the protected person must have been certified as incapable of managing themselves and their affairs because of a developmental disability that is permanent or likely to continue indefinitely by two licensed medical professionals.
Full guardianship is granted unless the protected person is substantially self-supported by employment. Then, a limited guardianship of the property may be granted overall property other than wages or earnings, according to the New York State Office of Children & Family Services.
Special Needs Trusts
While guardianships may be helpful for children with special needs embarking on adulthood, other legal processes exist to protect a vulnerable person's assets. For example, a special needs trust may be established for the protected person through which the assets are owned and managed by an appointed trustee.
Also known as a "supplemental care trust," this type of trust receives and manages money for the benefit of the disabled person while maintaining their eligibility for government services. In contrast, if money is reserved for the disabled individual through a traditional will, the person must use that money first for living expenses and healthcare until the money is depleted. During that period, they are generally ineligible for government benefits.
Funds from a special needs trust can be used to pay for goods and services traditionally used by people with disabilities, including medical and dental expenses, transportation, maintenance or modification of furniture, special training or rehabilitation, computers, and electronic equipment.
Other Asset Protection Strategies
A durable power of attorney may be created, so a specific person (or group of people) is responsible for making decisions on behalf of an incapacitated person. For people receiving government benefits, another person could be deemed a representative payee. A power of attorney is a valuable option, especially when a single transaction or transfer of property is involved.
If you have questions about guardianships or other legal protections for vulnerable individuals, an experienced estate planning lawyer can help you evaluate the need for guardianship and compare the benefits to other asset protection forms.
Adoption of a Child with Disability
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