Legal Guardianship for Children With Special Needs: 3 Steps

Takeaways

• Choosing a guardian for a child with special needs can be challenging, but it’s crucial to avoid getting overwhelmed as you navigate this process.
• Start by compiling a list of potential candidates and narrow it down by omitting those who are not suitable.
• Talk to the individuals you have in mind as potential guardians, encourage them to be honest with you, and give them time to consider their decision.
• Make your decision and put your plan into action, keeping in mind that you can always change your guardian nomination later.

Preparing a comprehensive estate plan to protect a child with special needs can be an emotional roller coaster. On the one hand, parents should be relieved that they are taking steps to guarantee that their child will be well cared for after they are gone. On the other hand, confronting one's own mortality and having to decide who will manage the affairs of a child with special needs can be stressful.

Of all the decisions that parents of children with special needs have to confront, the choice of a guardian stands out as one of the most difficult because the person serving in that role will essentially step into the parents’ shoes and take care of the child. But parents don’t have to dread this decision, especially if they follow these steps:

1. Take Time to Choose, But Don’t Take Too Long

Choosing someone to become the guardian of your child is not a decision that should be made lightly, but this doesn’t mean that the decision should keep you up at night, either.

Start by putting together a list of potential candidates. Don’t spend a great deal of time worrying about the list; just jot down anyone in your life who could potentially serve in this role. Then go through the list and eliminate anyone who, for whatever reason, doesn’t strike you as an optimal choice, keeping in mind that no one is going to be a perfect substitute for the original parent.

Chances are that this 10-minute exercise will immediately winnow your options down to a couple of people. Once you’ve narrowed down your options, take some time to think about each person on the short list. You don’t have to get hung up on choosing a person yet; you will still have some work to do.

The key at this stage is to not get overwhelmed with worry about your choices, especially since you haven’t even asked anyone on your list if they are willing to serve.

One of the biggest mistakes parents of children with special needs make is getting so caught up in the decision-making process that they fail to move ahead with their planning in any concrete way. You don’t want this to be you, so make your list, narrow it down, and then proceed to the next step.

2. Talk to Your Potential Guardians and Make Sure to Encourage Honesty

After you’ve narrowed your list of potential guardians down to a few names, meet in person with each of them and ask whether they would be willing to serve. Avoid putting these people on the spot with statements like, “If you don’t do it, I don’t know what we’ll do,” and encourage each person to be honest with you about their questions and concerns.

Do not look for immediate answers. Give your potential guardians time to think through everything and get back to you at a later date if they are on the fence.

This conversation may immediately narrow down your list further, as some people may tell you that they would not be willing or able to serve in this role. At the same time, talking face to face with your choices may help you to weed out a few more individuals.

3. Make a Decision and Put Your Plan into Action

After speaking with your prospective guardians, you may be able to make a decision about who will serve. However, if you still need more time to finalize your choice, keep a few things in mind. First, you can always change your nomination at a later point, and, in fact, many people do.

For instance, it may make sense for young parents to name their parents or older relatives as guardians while those people are still fairly young and then change their estate plans when the original nominee gets too old to serve. Likewise, if friends and family move away, parents may have to update their estate plans as the guardian they have picked for their child no longer lives in the area. Nothing is set in stone, which is why updating your estate plan regularly is so important.

That said, here are some additional questions to consider if you are having a hard time choosing a guardian:

• Do I want my child to stay in their community and is the guardian willing to move here if they don't already live here?
• Does the guardian have experience dealing with people with special needs?
• Does the guardian have too much going on in their own life to care for a child, especially one with special needs?
• Does the guardian have children, and if so, how old are they and can the guardian take on another child?
• How old is the person I have in mind to serve as a potential guardian? Is there anyone else I have in mind as a backup option in case they cannot take this responsibility on?
• Does the guardian share my values about things like religion, education, and finances?

Although the decision-making process may not be easy for every family, it is a necessary one. Remember, the worst thing that you can do is to leave guardianship to chance, which is what will happen if you don’t have an estate plan that reflects your wishes.

Work With a Special Needs Planning Attorney

The guardian you select will be responsible for making decisions on your child's behalf if and when you are no longer able to do so.

Once you’ve followed these steps and made your decision, put it into effect by meeting with a local special needs planning attorney. They can provide valuable guidance and support in navigating the complex process of planning for a potential guardianship, assist you in deciding on a suitable guardian, and work with you and your family members to draft the proper documents immediately.

In addition, attorneys specializing in this area can help parents create a comprehensive special needs plan that addresses the child’s unique needs and circumstances. This plan may include establishing a trust to manage the child's finances and ensure they receive the necessary care and support throughout their life. It also may mean providing guidance on government benefits and programs available to individuals with disabilities and their families.

For additional related reading, check out the following articles:

• Legal Guardianship for Adults With Serious Mental Illness
• How Legal Counsel Can Help Protect the Ward in Proposed Guardianship
• Intellectual and Developmental Disability: What Is an IDD?
• Social Security Simplifies Online SSI Application
• Legal Guardianship of an Adult: Serving as a Guardian