Special Needs & Guardianships
If you have a child or other family member with special needs, you probably play many roles in their life: caregiver, advocate, benefits coordinator, financial manager, etc. The person with special needs could be a 2-year-old son with severe autism or a 40-year-old sister with Down Syndrome. You know how much work it takes to aid and protect that person. You are up nights, worrying about who will care for and protect your special loved one when you are no longer able to do so.
At Falcon + Singer, we're sensitive to your unique set of concerns and circumstances, and passionate about helping you protect and care for your loved ones. Through thoughtful and methodical special needs planning and coordinated estate planning, you can have peace of mind.
We provide a strategic approach to identifying the specific requirements of a family member with special needs and develop a plan to address those needs, guiding you through the estate and special needs planning maze. In order to do so, we will look to you to help us develop an understanding of your family's particular situation and internal family dynamics. We will work as a team with your other support providers, such as your financial advisor, accountant or a life care planner to develop that comprehensive plan and determine the resources available to meet the needs uncovered during the planning process. Once the needs are identified and the strategy is developed, we will work with you to put in place the legal structure, including appropriate documentation - such as wills and special needs trusts - to implement the parts of the plan that deal with legal issues. We can also help you obtain a life care plan detailing specific medical, housing and other needs and can assist in applications for needs-based government benefits if necessary to meet those needs.
Our planning capabilities include:
- Advising on eligibility for governmental benefits, including need-based programs such as Supplemental Security Income (SSI), Medicaid and Section 8 housing, and other benefits such as Medicare and Social Security Disability (SSD).
- Special Needs Settlement Planning. Sometimes a person with special needs receives a settlement or judgment in a lawsuit, often for a personal injury or medical malpractice that caused the disability. If the person with special needs receives the money outright, this can cause a loss of critical needs-based benefits, such as Medicaid. In order to avoid that, we work with you and the personal injury or medical malpractice attorney to develop a special needs settlement plan to preserve eligibility for those needs-based government benefits.
- Transfer of wealth to a person with special needs can cause a loss of needs-based government benefits. There are ways to provide for the person with special needs to avoid loss of those critical benefits while making funds available to improve and enhance quality of life. We will explore these options with you and help you select the ones that are most appropriate.
- As part of the special needs planning process we will prepare the appropriate legal paperwork, including a special needs trust, will, power of attorney, health care proxy (living wills), memorandum of intent (setting forth comprehensive information about the person with special needs for use by the caregiver) and other appropriate documents.
- We coordinate with government and non-governmental agencies and advisors who can assist in developing a comprehensive plan to protect your loved one with special needs and provide needed services.
Guardianship
A person with special needs or another frail person, such as an elderly parent or grandparent, may not be able to handle financial affairs or make informed medical decisions. In such cases, you may have to step up and assume responsibility for that person's care, administer financial affairs and make medical decisions. In order to do that, you may have to become the legal guardian of the “person” (medical) and “property” (financial) of that person, who is referred to in legalese as the “ward.”
Regular Guardianship:
When you seek guardianship over someone, you are seeking to limit that person's rights and liberties. Guardianship is a complex process, requiring a lot of paperwork and a trip to court to obtain appointment as the legal guardian. Unfortunately, the decision whether to seek guardianship often comes up in a difficult and trying time for you, and can fill you with a sense of emotional ambiguity and sadness. The last thing you need is to have to unravel a complex ball of legal twine. We will try to de-mystify the process and walk alongside you down the path.
We will work with you to explore the ability limits of your loved one, in order to fashion a guardianship that gives you the authority you need to protect that person while preserving for that person as much independence and self-determination as possible. Sometimes, the person can do certain things without a guardian. If so, we may recommend a limited guardianship, covering only those areas that the person cannot handle. In other cases, the person may be unable to handle any of the activities of daily life. In that instance, a general guardianship may be appropriate, where you are given full financial and medical authority.
Either way, we will work with you to strike a balance.
Transition Guardianship:
When a child with special needs turns 18, the child is a legally emancipated adult, free to go where she wants and do what she pleases. Of course, the parents know better. The law may say the child is now an adult, but in actuality, the child may not have the skills and coping mechanisms to survive as an adult in the real world. However, once the child turns 18, privacy rules will prevent doctors, teachers, banks and others from consulting with parents or even giving parents information about their child. These limitations can really frustrate parents and hamper their efforts to care for and protect their special child.
In such cases, the parents may need to obtain legal guardianship over their special child. We provide targeted transition guardian services for children who are about to turn 18 and are moving from school into adult life. We work with parents, health care providers and school personnel in a collaborative effort to make the process of obtaining a guardianship over a special child as smooth and straightforward as possible.
Surrogate Decision-Making for Persons with Special Needs
Sometimes a person with special needs has a high level of functionality. A highly-functioning person with special needs may not be so disabled as to be a candidate for guardianship.
For example, you may have a child who has a very mild case of autism, who is 18, has graduated high school and, with your dedication and help, has developed a good set of coping skills enabling him to participate in mainstream life. However, he may have problems with numbers, counting and math. You are afraid that he may be victim of simple financial deception, even something as simple as getting short-changed at the supermarket cash register.
While you may always not be able to protect your child from an unscrupulous cashier, you can help with the bigger finances. Your child can authorize you to handle his money and finances through a properly-drafted financial power of attorney. With the power of attorney, you can open up bank and brokerage accounts for your special child and manage the money. You can pay bills and give him spending money. This is a simple and cost-effective way for a high-functioning person with special needs to give you the legal authority to help without the need for and expense of a guardianship.