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Preparing for your special needs child to turn 18

If you have a special needs child, you have probably spent years learning everything that is best for your child’s medical and financial care. Even though you may be very familiar with their assets and their medical treatment, you could run into issues talking to financial institutions and medical providers once your child turns 18 years old. Even if your child’s primary medical providers continue to talk to you, you want to make sure that you have the authority to speak on your child’s behalf in case you need to talk to a provider that isn’t your child’s usual doctor or nurse.

Power of attorney versus guardianship

Most parents assume that once their child turns 18, they will need to go through the guardianship process if their child has a disability. The good news is that your child is not necessarily unable to sign a power of attorney just because they have been diagnosed with a disability. Our job is to meet with your special needs child to talk to them to determine if they understand what a power of attorney is and if they want you to be able to help them with their medical and financial decisions. If your child understands, they are able to sign financial and healthcare power of attorney documents that give you the ability to continue to help them in dealing with their medical and financial affairs.

If your child is not able to sign a power of attorney because they do not have the capacity to understand what the documents are, then you can choose to go through the guardianship process. During the guardianship process, the court is asked to determine a person’s level of capacity and, if necessary, to appoint someone to act on their behalf when they are unable. This is also the process where you can ask the court to name you as the person who has legal authority to help your child make medical and/or financial decisions. The guardianship process is another way of ensuring that you are able to continue to speak on behalf of your child and get the information you need to care for them.

How do I give my special needs child an inheritance without impacting their benefits?

It is a common misconception that you cannot give an inheritance to someone who is receiving government benefits. Though you can give an inheritance to someone receiving government benefits, you need to make sure that you take special precautions to protect that person from losing those benefits. People receiving government benefits are only permitted to have a certain amount of resources available to them at any given time. When a person has more than the permitted amount of resources available, that person risks being disqualified from government benefits.

If you plan ahead, you can still give your child an inheritance even if they are receiving government benefits by creating a third-party, non-support supplemental needs trust for their benefit. Through this trust, you pick a person who you trust, the trustee, to hold the assets for your child. The trustee can use their discretion to use the money to supplement your special needs child’s government benefits. This helps you make sure that your child can live a fulfilling life without the risk of losing their government benefits, because the money never goes into your child’s possession. This also ensures that the person you pick to hold the assets on behalf of your special needs child cannot just take the inheritance for themselves. Instead, that inheritance will go where you intend.

If you have a special needs child who is turning 18 soon, contact Conti Law to discuss your next steps to make sure that you can continue to advocate for and protect your child, even after they are an adult.