Planning for the Future of Your Special Needs Child: Advanced Directives and Guardianship

Part 3

In my last two posts, I discussed the tools that should be put in place to ensure that your child with special needs is taken care of properly.  The “Five Pieces for Peace of Mind” that I suggested were:

            1.         A Letter of Intent

            2.         A Will

            3.         A Supplemental Needs Trust

            4.         Advanced Directives

            5          A Guardianship

Previously we discussed A Letter of Intent, A Will, and A Supplemental Needs Trust.  I will continue the discussion in this post discussing the importance of Advanced Directives and Guardianship.

Advanced Directives:  Advanced Directives allow a person to appoint someone to assist with financial and health care decisions if they are unable to themselves.  The most common advanced directives are Powers of Attorney (financial decisions), Health Care Proxies, and Living Wills (medical decisions).   Advanced directives may also be an effective tool for the special needs child who does not meet the criteria for a guardianship (more fully discussed below).

Guardianship: Parents of a special needs child, or any child for that matter, are considered the natural guardians until the child reaches the age of 18. After 18 the child is emancipated regardless of their functioning level.  Obtaining guardianship enables parents and relatives to ensure that they, or others that they designate, may act as advocates with legal authority and maximize all necessary and available supports and resources for the special needs child who requires some level assistance in managing their personal and/or financial affairs.  In order to obtain guardianship, a court proceeding needs to be commenced.  There are different types of guardianships.  For example, there is a guardianship that is plenary (covers everything), or one that is tailored for the specific needs of the child (i.e., the child can take care of themselves in certain ways but needs assistance with certain aspects of their life). The guardianship that is right for your child can be determined with your special needs planning attorney. Contrary to popular belief, the guardianship cannot be appointed via Last Will and Testament. (This is only a recommendation.) 

Once the “five pieces for peace of mind” that I discussed during my last three posts are put into place, it is important to select a combination of resources that will guarantee adequate funds for your child’s lifetime, such as insurance, savings, investments, family assistance, etc.  Your special needs planning attorney can refer you to insurance and investment professionals to facilitate this.   It will also be important to review the beneficiaries of all “non probate assets” i.e., employer sponsored retirement plans, IRAs, Keoghs, life insurance policies, etc.  

Additionally, it is important to hold a meeting with all interested parties - the Guardian(s), all Trustees and Successor Trustees and all siblings and any other interested relatives - to review the estate planning documents, and to discuss the plan.  Finally, it is important to review all documents periodically, especially if the child’s condition changes or the parents’ economic situation changes.

I understand that the thought of predeceasing your special needs child is frightening.  It is so frightening that we do everything we can to never think about it.  Being a mother of a child with significant special needs myself, I understand these feelings.  The fear of not being here to care for my son - whose needs nobody knows better than I do - scares me. 

Nevertheless, as an attorney who has worked with families of special needs children for over 15 years, I can assure you that waiting to put a plan in place is a huge mistake. If a plan is not put in place, the only person you are potentially hurting is the child you are trying to help. You will be leaving your child’s future caregivers with no direction. 

The odds are that you will predecease your child. It is essential that you put in place the tools that will ensure that your child is taken care of properly and can access the services that they require. There are tools available to ensure that your child will be taken care of.  It is strongly recommended that you take advantage of the opportunity to plan while you are still able to do so.

Please look out for my next blog post where I will discuss back to school issues for the special needs child. 

Nothing in this blog post should be construed as legal advice.  Please consult with an attorney before relying on the information contained herein.