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Guardianship/Estate Planning

When a child turns 18 he/she is a legal adult, which brings with it the rights, responsibilities, and consequences of his or her choices. If your child's disability renders him/her unable to make decisions in his or her own best interest, consider applying for guardianship when your child is approaching the 18th birthday. The parents do not automatically remain the child's natural guardian.

Guardianship is a legal arrangement through which a person or persons are legally authorized to make decisions for another person. This includes basic needs, such as food, clothing, shelter, medical care, and/or financial decisions. Becoming a guardian is a decision that should not be taken lightly as the individual who is deemed incapacitated may lose some or all civil rights, including the right to vote, drive, or marry. Laws vary by state and some states require that the guardianship order specifically addresses or takes away some rights, such as voting, or the person retains those rights.

Guardianship is a court-appointed role, but before any legal proceedings are started, an evaluation of the person's skills, abilities, deficits and problems is obtained and the need for a guardian is documented. The need for guardianship focuses on the individual's ability to make decisions, communicate the decisions once made, and to understand their consequences.

Once the need for guardianship is established, a court hearing is held, in which an attorney may represent the disabled individual. The court may grant either a "limited guardianship", authorizing the guardian to make only certain decisions, or "full guardianship", granting authorization for the guardian to make all decisions for the individual. In some states, a "limited guardianship" is granted unless the need for "full guardianship" is proven. Some states require that a "conservator" be appointed to make important financial or estate planning decisions if needed. The court may place an incapacitated person under a guardianship, conservatorship, or both.

In some states, guardians must report to the court annually about their guardianship activities, the condition of the individual, and the status of the estate.

It is important for families to discuss who will have guardianship in the event of the guardian's death or inability to serve in that role. The person(s) responsible for guardianship must put their wishes in their will.

Estate Planning

Families who have children with disabilities need to plan very carefully so that family assets can be used in the best interest of the family and individual with special needs. Proper planning will enable your child to "receive his or her inheritance", yet still qualify for or retain SSI, Medicaid, and other government benefits. With careful legal and financial planning, parents can ensure that their children will have a good quality of life.

Special Needs Trust

A Special Needs Trust (SNT) is the only reliable, legal tool that ensures an individual's inheritance is available to the person with a disability when he or she needs it. The Special Needs Trust, also called a "supplemental care trust," receives and manages money for the benefit of a child with a disability while maintaining his or her eligibility for government services.

While the services available through government benefit programs may be substantial (e.g., medical coverage through Medicaid), the actual cash benefits are generally quite small and force the individual to live way below the poverty level. If the money is left in a traditional will, the person must use that money first for living expenses and healthcare until the money is depleted. During that period he or she will lose government benefits.

To be sure that needed government assistance continues, the assets must be placed in the trust and set up correctly. Although the government states that a person with a disability cannot have a trust, the SNT is acceptable because the trust does not belong to the person with a disability. He or she is nominated as a beneficiary of the trust and is usually the only one who receives the benefits.

The SNT must be designed specifically to supplement, not supplant, government benefits. Money from the trust cannot be distributed directly to the person with a disability. Instead, it must be distributed to third parties to pay for goods and services to be used by the person with a disability.

The SNT may be used for various expenditures such as:

Out-of-pocket medical and dental expenses;
Eyeglasses;
Annual independent check-ups;
Transportation (including vehicle purchase);
Maintenance of vehicles;
Insurance (including payment of premiums);
Rehabilitation;
Essential dietary needs;
Purchase materials for a hobby or recreation activity;
Purchase a computer or electronic equipment;
Pay for trips or vacations;
Pay for entertainment like going to a movie, a ballgame, concert, etc.;
Purchase of goods and services that add pleasure and quality to life such as videos, furniture, or a television;
Athletic training or competitions; and
Personal care attendant or escort.

The trust money may NOT be used for food, shelter, and clothing; it can be used for items not paid for by government assistance such as medical expenses, dental work, home repair or education. Make sure to use a lawyer who has extensive experience with these trusts.

Some possibilities of funding a special needs trust are:

Insurance;
Standard government benefits;
Saving and investments, including money in retirement funds;
Assistance and inheritances from friends and family members;
Property, such as a family home; and
Military benefits.

The money in the trust can be invested and earn unlimited money. The assets and earnings belong to the trust, not the child. Parents can establish and fund the trust, and act as trustees while they are alive, or the trust can be written so that is established by the parents' will and starts to function after the parents' death. There are numerous advantages to establishing a trust early, even before the child turns 18.

Resources

Information & Support

For Professionals

Sample Guardianship Letter from Medical Home ( Word Document 26 KB)
From a physician in Utah, this one-page sample letter identifies functional limitations of an adolescent to support the parents in seeking guardianship as their adolescent becomes an adult.

Sample Guardianship Letter from Medical Home ( PDF Document 12 KB)
From a physician in Utah, this one-page sample letter identifies functional limitations of an adolescent to support the parents in seeking guardianship as their adolescent becomes an adult.

Sample Guardianship Form Letter from Medical Home ( Word Document 47 KB)
This adapted, six-page form letter provides questions and checklists for identifying functional limitations of a young adult to support the parents in seeking guardianship of their adult child.

Sample Guardianship Form Letter from Medical Home ( PDF Document 17 KB)
This adapted, six-page form letter provides questions and checklists for identifying functional limitations of a young adult to support the parents in seeking guardianship of their adult child.

For Parents and Patients

DisabilityInfo.gov
An online resource to the federal government's disability-related information and resources with links to agencies and organization in all states.

National Guardianship Association
The website is an excellent source of information on the rights and responsibilities of the incapacitated individual, as well as the guardian. The site also has resources and provides educational training and network opportunities for guardians.

Guardianship Associates of Utah
Provides information and referral service for guardianship issues. Written materials, kits, and presentations are available; can help families obtain guardianship on an incapacitated family member; may be able to act as a legal guardian for incapacitated persons who have no family able to do so.

Office of Public Guardian, Utah
Provides public guardianship and conservatorship services to incapacitated adults. 801-538-8255.

Special Needs Trust
A comprehensive discussion of special needs trusts from the National Institute on Life Planning for Persons with Disabilities.

Special Needs Trustee Selection ( PDF Document )
Provides information about special needs trusts including trustees and oversight.

Sound Financial Strategies ( PDF Document )
Provides information about special needs trusts including trustees and oversight.

Estate Planning
Information on estate planning and the disabled from the University of Pittsburgh School of Law.

Securing Your Family's Financial Future
From the Exceptional Parent Magazine, this article provides and overview of planning including a letter of intent, picking a successor caregiver, special needs trusts, wills, and more.

Arc of the United States
Publishes A Family Handbook on Future Planning which is a guide to help families develop a future plan that provides personal, financial, and legal protections for their children after the parents either die or can no longer provide care or support. The book is free and available on their website.

Arc of Utah
An organization of and for people with mental retardation and related developmental disabilities and their families. It is devoted to promoting and improving supports and services for people with mental retardation and their families. The association also fosters research and education regarding the prevention of mental retardation in infants and young children.

American Bar Association Commission on Mental and Physical Disability Law
Provides information on all aspects of the Americans with Disabilities Act, the Family and Medical Leave Act, and related legislation, including caregiver rights.

Disability Law Center
A private non-profit organization designated by the Governor to protect the rights of people with disabilities in Utah. Mission: To enforce and strengthen laws that protect the opportunities, choices and legal rights of people with disabilities in Utah.

Planning for Children with Special Needs. MetLife Securities, Inc.
MetDESK, MetLife's Division of Estate Planning for Special Kids helps you to take steps to provide lifetime quality care that your child or dependent with special needs requires.

Services

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Authors

Contributing Authors:

Alfred Romeo RN, PhD, 12/2008
Robin Pratt, 12/2005
Barbara Ward RN BS, 12/2005
Gina Pola-Money, 12/2005
Joyce Dolcourt, 12/2005
Kristine Ferguson, 12/2005
Teresa Such-Neibar DO, 12/2005
Lynn Foxx Pease, 12/2005
Helen Post, 12/2005
Roz Welch, 12/2005

Content Last Updated:

12/2008

Funding/Support

Thank you to the Utah Medical Home Young Adult Advisory Committee for reviewing this section.