You may already know that once your child turns 18 years old, even if your child is obviously disabled, you are not afforded the privilege of simply moving along as though this milestone has not happened. Your child’s rights attach at age 18, regardless. Now you must prove to the court that your child does not have the decision-making capacity to make his or her medical or personal decisions.
The petition for guardianship and conservatorship should be started the month before the month that your child will turn 18 years old. A guardian ensures that your child has safe shelter, food, clothing, medical care, education, and social interactions. A conservator manages income and assets. The same person can be the guardian and the conservator, or it can be different people or entities. A conservatorship is often not needed if there are no assets and no income other than social security.
Two people can be co-guardians, which is typically the case when there are two living parents. The guardian must file an initial care plan and then annual reports thereafter. The guardian does not automatically get to make all the medical decisions. Important medical decisions require advanced court approval.
While you are young and healthy, you should consider who will look after your child when you are gone and what assets will be used to provide that care. We have a large population of aging parents who have sacrificed their lives caring for their children and who presume that either one of the other children or another relative will pick up the ball once the parent becomes incapacitated or dies. The sad reality is that this is wishful thinking, and these folks are finding themselves in quite a predicament.
The most effective way to plan is by creating a Special Needs Trust and purchasing a life insurance policy on your own life. Make the trust the beneficiary. At your death, the trust will be funded; the trust document will dictate how a trustee is selected and create an advisory committee for the trustee to ensure the trustee knows what your child’s needs are. As a bonus, this type of trust does not disturb whatever government benefits are available to your child, and the state cannot make a claim against assets remaining in the trust at your child’s death. You will have set the terms for who gets whatever is left over, if any. Win-Win.
