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More About Special Needs Planning

What is a guardianship?

Guardianship is a legal means of protecting children and “incompetent adults” (in legal terms, adults who cannot take care of themselves, make decisions that are in their own best interest, or handle their assets due to a physical or mental disability).  When the court determines that a person is incapable of handling either their personal or financial affairs a guardian will be appointed.

The subject of guardianship for an adult child with disabilities is of concern to most parents.  Parents of children with severe disabilities often assume that they can continue to be their adult child’s legal guardian during the child’s entire life.  Although it may be obvious to a parent that a child does not have the capacity to make informed decisions, legally an adult is presumed competent unless otherwise determined to be incompetent after a competency proceeding.  Once an individual reaches the age of 18, the parent is no longer the individual’s legal guardian.  Parents need to explore legal options available to protect their child from unscrupulous individuals who may exploit their child’s inability to make informed choices.

How do I name guardians for my children?

Guardians are always named in a will.  If you fail to appoint guardians in your will, the court will decide who raises your children.  For parents of minor children, this is the most important estate planning decision you’ll ever make.

Even though it’s hard and no one can raise your children as well as you can, move forward and select the guardians you think will muddle through the best.  Some folks delay estate planning because they can’t make this decision.  Don’t do that; it puts your children at risk.

What if the guardians I name can’t serve?

Such an important question that many folks forget to ask.  It’s essential that you name contingent guardians in your will in case your primary guardians are unable or unwilling to serve if the time comes.  Life does indeed change, so also be sure to indicate who gets the kids if guardians divorce.

How can I best protect my children?

Minor children need more protections than adult children but both benefit from your thoughtful estate planning.  It’s essential that you name guardians (and contingent guardians) for minor children in your will; also, be sure to name guardians/trustees of the funds you leave for them.  Minor children cannot inherit outright.  Adult children don’t need guardians but most do benefit from lifetime trusts which can protect their inheritances from a divorcing spouse, lawsuit, bankruptcy, business failure, addiction, and spendthrift spending.

Should the same person I name as guardian for my children manage their trust?

Lawyers often say, “it depends,” because it does.  Sometimes the same folks are appropriate for both roles and other times, naming different people is the right thing to do.  This is what we call a “counseling issue,” meaning that after we talk it through, you’ll know what decision to make.  The people who care for your children day-to-day may or may not be the best fit to manage the finances as well.