Things Every Parent With A Special Needs Child/Adult Should Know

*Let’s see who can be the guardian for Max, a soon to be 18 year old disabled adult.

1. Max’s mom and dad.

Perhaps the most common request for court ordered guardianship is submitted by Max’s biological parents.  Max lives at home with mom and dad.  Max’s parents plan to have Max continue to live at home until he can no longer attend high school.  At that point, mom and dad hope that Max may be able to live in a sheltered environment, maybe even an apartment. Mom and dad intend to apply for Supplemental Security Income (from Social Security) for Max when he turns 18.  Mom plans to be the payee for those benefits.

2. Max’s mom and sister, Janie.

Let’s say that Max’s dad passed away 3 years ago. Janie is 24. Mom asks Janie to be a co-guardian with her. Mom’s concern is that if something happens to her, Max won’t have a guardian at all. She is worried that the time lag between her death and Janie’s appointment as a guardian will leave Max unprotected. This is a legitimate concern. Before Max’s mom names Janie as a co-guardian with her, she must make sure that Janie really wants the job. It may be that Janie has always helped take care of Max. She always knew the day would come when she would need to step up to the plate and serve as a guardian. Janie is ok with this.

What if Janie is not willing to serve as guardian? Max’s mom can get sole guardianship. Many people do. Then, Max’s mom can put together a Will that says if something happens to her, Janie or someone else she names will step up as guardian. That person will need to be court appointed just like Max’s mom. However, by naming someone in Max’s mom’s Will, Max’s mom at least insures that her choice of guardian will have 99.8% chance of being Max’s court appointed guardian. That bit of uncertainty is always there when you are dealing with a court system and a judge.

3. Max’s dad and stepmother.

Let’s say that Max’s mom and dad are divorced.  Max’s mom hasn’t been in the picture in years.  She calls about once a year to see how Max is doing. She ignores Max’s birthday and is never in touch during holidays.  Max’s stepmother has taken very good care of Max. If something happened to Max’s dad, it would be a disaster for Max to be in the care of his biological mother. Max’s stepmother would absolutely be the best choice of court appointed guardian.  As long as diligent attempts are made to serve Max’s mom, with the court papers, either at her last known address or by publication in the newspaper, Max’s stepmother can go for the guardianship.

How does this scenario change if Max’s dad and mom are both involved in Max’s life, but they do not get along at all?  If Max’s dad and mom have had court ordered joint custody of Max, then they both can be named as guardians.  If Max’s dad was granted sole custody of Max in the divorce, then he can pursue sole guardianship.

What is in Max’s best interest is the most relevant point for a judge.  It is clearly not in Max’s best interest to have his parents fighting for years to come either because one became guardian only or because both are named as guardians and can’t see straight to agree on anything.

Want to know more about special needs guardianships and divorce? Check out my blog on this topic.

4. No family members.

What happens if Max does not have any family members willing to serve as guardian?  At that point, the Maricopa County Public Fiduciary’s office steps in and serves as court appointed guardian.  This is far from ideal, but it is at least a safety net.

5. Court ordered guardianship responsibilities.

The court ordered guardian is responsible for taking care of Max.  This includes making all decisions that impact Max’s daily living, future and medical care.  If Max is typical, he probably does not have much money, if any. He may have a small savings account or get birthday or holiday money. The biggest asset Max may well have will be his monthly SSI (Supplemental Security Income through Social Security) benefit.  So long as Max doesn’t have more than $10,000 - $12,000 to his name, you only need to pursue court ordered guardianship. There is no need for a court ordered conservatorship.  A court ordered conservatorship is set up when someone needs a “money babysitter”. The requirements for the court ordered conservatorship are very different than the requirements for the court ordered guardianship.

If you are going to be Max’s court appointed guardian, you want to also be sure that your estate planning documents do everything they can to support Max.  You can name a guardian, in your Last Will, to step up to the plate if you die.  You can protect Max’s governmental benefits by setting up a Special Needs Trust.  Naming someone in your Powers of Attorney who is authorized to make guardianship-type decisions for Max when you are incapacitated is very helpful as well.

Are you ready to begin? Schedule an Appointment

AVVO Accredited Estate Planning Lawyer
ARAG is a global provider of legal solutions. (PRNewsFoto/ARAG) (PRNewsFoto/ARAG)