If you’re a parent or caregiver for a child with special needs, the day your child turns 18 can be very scary, especially if you don’t have a proper plan in place for your family.
When your child turns 18, whether you like it or not, they legally become an adult and have the right to make decisions about their medical treatment, finances, property, and life. For the decisions to be legally binding, your child should be competent to understand the decision being made and the consequences of the decision.
When considering whether to seek guardianship for your child after they turn 18, it’s important to understand your options. The following article outlines the ways you can continue caring for your child with special needs after they turn 18:
Guardianship
Guardianship is a legal way in which a parent or caregiver asks the court to find their child unable to manage his or her affairs because of a disability. Chapter 744 of the Statutes governs the guardianship process. As your child’s guardian, just like you did when they were under 18, you will continue to make the decisions related to medical treatment, finances, and property for your child with a disability. The courts will only remove the rights which your child cannot manage on his or her own. The process to set up a guardianship is not something to take lightly, and it can be long and expensive. DiFranza Law can help guide you through the process.
Guardian Advocacy
Guardian Advocacy is a process under §393.12 of the Florida Statutes as well as Florida Statutes, Chapter 744 that allows for family members, caregivers, and friends of a child with a developmental disability to obtain the legal authority to act on their behalf. A child is considered to have a developmental disability if they have an Intellectual Disability (IQ less than 70), Autism, Cerebral Palsy, Downs Syndrome, Phelan-McDermid syndrome, Prader-Willi syndrome, or Spina Bifida that manifested before they turned 18.
Guardian advocacy is similar to Guardianship, but it is easier to implement. Like Guardianship, the court will only remove the rights that your child cannot manage. A Guardian Advocate for a person with a developmental disability has the same powers, duties, and responsibilities required of a Guardian and those determined by a judge. This includes creating an initial plan and annual reports, making decisions for medical care, making decisions about where to live, making decisions about how to spend money, and advocating on their behalf. Unlike Guardianship, Guardian Advocacy does not require a capacity hearing. If you are considering Guardian Advocacy, DiFranza Law is here to help.
Alternatives to Guardianship and Guardian Advocacy
In cases where Guardianship or Guardian Advocacy doesn’t make sense for your family or when they are deemed unnecessary the following strategies can allow you to continue to care for your child after they turn 18 without compromising their government awarded benefits.
- ABLE Account – If your child became disabled before they turned 26, an Achieving a Better Life Experience (ABLE) account can be setup. An ABLE account allows for up to $15,000 per year to be deposited into a tax-free savings account without affecting eligibility for government awarded benefits. While it can be easy to setup, the account can’t hold more than $100,000 and there are other hidden pitfalls that should be carefully considered before selecting this as an option.
- Special Needs Trusts – A Special Needs Trust also called a supplemental needs trust allows for your special needs child (before or after they turn 18) to receive gifts, an inheritance, or other funds to provide supplemental care, life-enhancing services and equipment beyond that what the government provides. The Trust directs the funds so that the funds are not considered to belong to your child when they apply for government programs, such as Medicaid and Social Security Income (SSI). The 3 main types of Special Needs Trusts include first-party special needs trust, third-party special needs trust, and pooled trust.
- Life Insurance – If you don’t have funds to put into an ABLE Account or a Special Needs Trust, life insurance is an option to consider. Once you establish a Special Needs Trust for your child, the life insurance policy can be directed to payout to the Trust without being subject to estate taxes or probate. It is important to make sure you choose a life insurance plan that provides your child the same quality of care for the remainder of his or her life.
Get Help with Guardianships & Trusts
Whether you select Guardianship, Guardian Advocacy, or Estate Planning strategies, DiFranza Law can help you develop a plan for your family that protects the long-term welfare of your child with special needs. Schedule a consultation today.