Do you have a child with a disability? Have you begun the process to plan for your child and his or her future? Do you know some of the legal considerations you need to think about? We understand you may want to avoid this topic due to the difficult challenges it forces you to face but you cannot wait to complete this planning. It is important to plan ahead for the long-term future of your disabled child.
When children reach the age of majority, which across the nation is between eighteen and twenty-one years of age, there are many changes that can take place. One of the changes is that the child may now make his or her own decisions in regard to finances and health. For example, did you know that even if the child is extremely high on the spectrum or can barely function for him-or herself, a parent no longer has the legal rights to make financial or health care decisions once the child is deemed an adult? Without proper Florida estate planning, even someone with a significant developmental, cognitive or mental health disability is legally permitted to make decisions at the age of majority.
What should you do? For years, you have spoken to the school, to banks, financial institutions, doctors, specialists and so many more for your child. Now, this has the potential of no longer being a legally viable option on your child’s eighteenth birthday. If your child does not have the requisite capacity to make advanced directives, such as powers of attorney or health care planning documents, you may need to consider creating a guardianship.
As your child’s guardian you will be able to maintain the authority to make legal decisions. The process of deciding whether or not guardianship is necessary, though, can be difficult. Before speaking with your attorney, you need to assess all of the different areas in which your special needs child may need assistance. This includes evaluating his or her medical, educational, financial, and vocational decision-making skills. In this situation, your child with a disability may be able to retain specific control over some aspects of his or her life, but you, as the parent and guardian, maintain the rest. This will be important to establish early on as the court in the guardianship of special needs children often encourages communication on what the child can do to create the right governance moving forward.
Your attorney, with specific expertise in this area, can be very helpful in providing guidance and thoughtful decision-making. Your attorney will not only assist you with the guardianship but work with you to ensure that your estate planning is comprehensive and up-to-date. You need to ensure your legacy will provide for your child should something happen to you. Planning ahead for a future where you are no longer here is extremely important. You do not want the person with disabilities to be left to his or her own defenses, or let the court make decisions through the intestacy process in the probate court. Further, your attorney can help you create a special needs trust to ensure that money will be available for a person with disabilities throughout his or her lifetime. It can be used for a special needs beneficiary while not interrupting his or her ability to receive public benefits, such as Medicaid or Supplemental Security Income.
You and your loved ones deserve the best Florida estate planning possible. The key is to plan ahead both for your loved one and for yourself. Do not wait to plan. We welcome you to schedule an appointment by contacting our office.