Special Needs Planning

Special Needs Planning - When Should You Plan For Guardianship?

Special needs planning can be very complicated and complex. If you have a Special Needs Child or adult-child for whom you need to plan a guardianship, the Law Offices of James C. Shields and their specially trained attorneys can answer all your questions and help you navigate through the details. Guardianship should be sought only as a last resort.

Losing Parental Rights

Guardianship is a deprivation of individual rights. Parents eventually relinquish their parental rights when children turn 18. They also relinquish these rights if their children are/become incapacitated with either developmental or intellectual disabilities and need a guardian. While it is almost always the parents, occasionally, a grandparent, or another relative may be granted guardianship. Being granted guardianship is a lengthy process and can be difficult to obtain.

In the event that a disabled child turns 18 and the parents have not secured a guardianship, that child is then considered a legal adult, with full rights to enter contracts, sign leases and refuse services. They can do anything any other adult can do. Although some of those things can be undone, it gets very expensive.

Restoring Parental Rights

If granted guardianship for their disabled child, a parent is essentially restored all their rights, authority, and powers they previously had over the child as a minor. Preferably, this should be addressed prior to the child's 18th birthday. Protecting your disabled child or adult child through guardianship is quite common; however, every state handles this differently.

There are several levels and options available; if your child doesn't need full guardianship, let the professionals at James C. Shield's law firm guide you with viable choices. Guardianship is a valuable option used to protect individuals who have lost the ability to make sound personal or financial decisions.

What Do the Courts Do?

The courts typically try to place individuals in the LRE - Least Restrictive Environment - necessary. In order for another adult to gain guardianship, the child/adult must be "incapacitated" by a doctor and the courts. Guardians assume the duty of caring for the individual with disabilities and/or their assets, and the court maintains oversight to reduce the risk of abuse or exploitation by the guardian.

A special document that becomes a part of one's will is called a Special Needs Trust Agreement. This document creates the special needs trust for the individual. When the last parent dies, the trust is then funded through the parent's will. Other sources such as IRAs, life insurance, and annuities may factor into the funding as well.

Different Types of Guardianship

There are several types of guardianships available for special need individuals - each one is designed to protect specific needs of the individual.

  • Guardianship of the Person - the guardian's decisions are limited to such this as medical treatment decisions
  • Guardianship of the Estate - the guardian is responsible for managing the assets of an individual with disabilities estate
  • Guardianship of the Person and Estate - in cases where the court has determined the individual with disabilities can retain some capacity for rational decision-making.

Serving as a Guardian

Any person who:

  • Has is 18 years of age;
  • Is a U.S. resident;
  • Is of sound mind;
  • Is not incapacitated; and
  • Has not been convicted of a felony involving harm/threat to an elderly person or person with a disability
  • There is evidence of rehabilitation.

In some jurisdictions, a conviction for any felony is disqualifying.

Some entities may also serve as guardian, including any not-for-profit corporation or public agency found capable by the court of providing the care and/or support the ward requires. Any corporation qualified to accept and execute trusts may serve as guardian of the estate.

Guardianship Limitations

Examples of the limitations of guardianship include, but are not limited to:

  • No authority for permanent placement in a care facility without court approval;
  • Ward cannot be forcibly medicated, except by order of the court;
  • Ward cannot be kept isolated from any person, except at their request, or by order of the court for the ward's safety;
  • Ward cannot be prevented from requesting a hearing to seek restoration of rights. (1)

When appropriate, however, guardianship provides two important layers of protection (the guardian and the court), for those who have lost the ability to protect themselves.

Contact the Law Offices of James C. Shields today and let us assist in the Special Needs Planning for your loved one with disabilities. From Last Will and Testaments to power of attorneys, advance directives, conservatorship, guardianship, and Medi-Cal planning, you will find us to be knowledgeable, professional and compassionate.

Article Resources:

(1) https://protectedtomorrows.com/understanding-guardianship-adults-special-needs/

https://achievementcenteroftexas.org/2018/01/30/special-needs-guardianship/

http://www.cdlsusa.org/docs/publications/transition/NavigatingHealthcareTransitions_ForParentsCaregivers.pdf

https://children-laws.laws.com/legal-guardian/legal-guardianship/reasons-for-legal-guardian-appointment

https://adayinourshoes.com/guardianship-disabled-child/

https://www.galmichelawfirm.com/blog/2016/november/understanding-role-of-guardian-ad-litem-in-child/