Special Needs Trust Law on Guardianship and alternatives

When children turn 18, they legally become an adult, with the right to make independent decisions about where to live, how to spend their money, what type of medical treatments they will have and generally how to live their lives.

But if your child has special needs, you may need to continue providing the same kind of guidance and help you always have. A guardianship ensures you still have the legal right to make these important decisions for your child after they become an adult.

Not everyone with special needs will require a legal guardian because not every disability prevents a person from having the capacity to make decisions. Sometimes less restrictive options are a better alternative to a guardianship, such as a Special Needs Trust Plan or a Durable Power of Attorney

If a guardianship is the right solution for your family, there are a few important things that you need to know.

There are two main different types of guardianships:

A guardian of the person and a guardian of the property. The same person can serve as both or it can be two different people.

  1. A guardian of the person can make decisions about medical treatments and other healthcare decisions, housing options, nutrition and dietary needs, clothing, and other areas that affect the person.
  2. A guardian of the property makes decisions about money, spending, saving, income, trusts, investments, property, public benefits and all other financial matters.

For children with disabilities who turn 18, the guardian is usually parents, an adult sibling or other adult family members. If there are no family members who can serve as a guardian, the court can appoint a professional guardian, who will be supervised by the court.

The process of becoming a guardian begins with a petition to the court. It should contain all the information about your child’s disability and why you need to be able to make decisions for your child. An affidavit from your child’s doctor may also be needed to describe your child’s disability from a medical perspective; a brief description of the disability and how it affects the person’s ability to make decisions.

After a hearing, the court will determine whether your child has the capacity to care for himself and then whether you are the right person to serve as guardian. Once appointed, the court will provide a complete list of all the powers and duties of the guardian and will usually ask the guardian to file an annual report with the court to ensure your child’s needs are being met and his finances are being handled responsibly.

Contact our lawyers in Plano to find out how we can help you with our special needs trust planning services.