Securing Your Disabled Child’s Future: 5 Estate Planning & Guardianship Tips for Long-Term Care

Advances in medicine have led to an increase in life expectancy in the United States, which currently stands at 78.7 years according to the Center of Disease Control (CDC). However, these statistics typically represent the “able” and somewhat healthy population. So, what about individuals with disabilities?

The Americans With Disabilities Act (ADA) defines a person with a disability as someone with a physical or mental impairment that substantially limits one or more major life activities. As a responsible parent, guardian, or caregiver of a disabled child, it’s crucial to plan their life and ensure their wellbeing in case of a crisis.

Unfortunately, being around forever to care for a disabled individual isn’t feasible. Depending on the severity of the disability, the individual may outlive their caregiver. Therefore, having a contingency plan is essential to ease the financial burden of such a situation.

In this comprehensive guide, we will explore five essential tips for caring for a disabled individual, focusing on estate planning and guardianship strategies. We will also provide internal and external links to resources from KJ Richards Law to help you stay ahead of the curve.

1. Make Sure You Have a Will in Place

One of the primary reasons people create a will is to determine who receives their property upon their death. In the case of caring for a disabled individual, you must include appropriate Guardianship and Supplemental/Special Needs Trust provisions.

A Supplemental/Special Needs Trust (SNT) aims to preserve government benefits for disabled beneficiaries and maximize/preserve the use of private/personal funds. Furthermore, setting up an SNT can help ensure that your disabled child’s needs are met even after you’re gone.

2. Choose the Correct Trustees and Guardians

When a disabled child turns 18, their parents can no longer legally make decisions on their behalf. At this age, the child is deemed “legally competent” and gains the ability to make their own decisions regarding health and finances.

Before a disabled child turns 18, a caregiver or guardian should consider an Article 17-A Guardianship, available in New York State for those classified as “intellectually disabled or developmentally disabled.” If a disabled child is unable to sign a Durable Power of Attorney and Medical Proxy, an Article 17-A Proceeding must be commenced in Surrogate’s Court to appoint a legal Guardian for the now-adult disabled person’s personal and/or financial needs.

3. Purchase a Life Insurance Premium to Support a Disabled Beneficiary

Consider purchasing a separate life insurance policy to fund an SNT when the parent/caretaker dies. Doing so ensures that the disabled beneficiary’s care isn’t compromised and lessens the burden on the new guardian.

Investing in a life insurance policy can provide financial security and peace of mind, knowing that your disabled child will be taken care of even after your

passing. Consult a qualified estate planning attorney to help you determine the best life insurance policy for your unique situation.

4. Legal Documents Naming a Sufficient Successor Guardian/Trustee Younger than the Current Guardian

As a precautionary measure, parents of a disabled child should always have a qualified guardian/trustee in place who is younger in age than the parents themselves. This is to ensure that, in the event of a crisis or death, the disabled child is not left without someone to tend to their needs.

Proactively addressing this issue can help prevent potential complications and provide a smooth transition of care for your disabled child. Additionally, working with an experienced estate planning attorney can help you create the necessary legal documents to secure the future of your disabled child.

5. Understand the Roles of Guardian, Trustee, and Their Importance

There is no substitute for you as a parent. In estate planning, a guardian is someone who assumes the role of a parent in the eyes of the law, taking on all parental duties. A trustee, on the other hand, manages the financial needs of the child. Both play crucial roles in the event of a tragedy, with the guardian providing daily care and support, while the trustee manages and allocates funds left behind for the disabled child’s care.

In some cases, the same individual is chosen as both the guardian and trustee. In other instances, separate individuals fulfill each role, with one being stronger in care and nurturing while another is more fiscally responsible. Regardless of the arrangement, it’s vital to ensure you make the right decision when choosing individuals to fill these roles, as they will play key roles in your disabled child’s life moving forward.

Consult with an estate planning attorney to draft the necessary legal documents for appointing a guardian, trustee, or both in your estate plan. While you can’t put a dollar amount on the care of your child, choosing the right guardianship and/or trustee arrangement is crucial for their wellbeing.

Conclusion

Proper estate planning is essential for any family, but it becomes even more critical when caring for a disabled child. By following these five essential tips and working with a knowledgeable estate planning attorney, you can ensure that your disabled child’s future is secure, regardless of what life may bring.

Remember, it’s never too early to start planning. By being proactive and staying informed, you can provide the best possible care for your disabled child and secure their future, even in the face of uncertainty.