GUARDIANSHIP AND SPECIAL NEEDS TRUSTS FOR INDIVIDUALS WITH DISABILITIES
Parents of children with special needs should consider obtaining guardianship of their disabled adult children as well as setting up a Special Needs Trust when they begin their estate planning or sooner if their child with special needs is likely to have long-term medical or support needs. Both guardianship and Special Needs Trusts are important vehicles for protecting children with special needs. When a child turns 18 years old, in the eyes of the law, that child is emancipated and able to make his/her own decisions. When children have special needs which limit their ability to make decisions or fully care for themselves, emancipation can cause difficulties for their families in appropriately caring for them. In New Jersey, the law allows parents to retain the ability to care for and protect their special needs adult child as they have been for all of their child’s life.
Parents of a special needs child who is nearing their 18th birthday should consider applying to the Court in the county in which the adult child lives to be appointed as their child’s legal guardian. Although guardianship applications can be made at any time in a person’s adult life, applying for guardianship as soon as the child turns 18 will allow parents to continue safeguarding the adult child’s assets and to make critical decisions during adulthood. Guardianships can be full or, depending on the child’s needs, limited, either allowing the adult child to retain the freedom to make certain decisions. If the Court finds that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself, the Court may appoint a limited guardian of the person, limited guardian of the estate, or limited guardian of both the person and estate. The Court, when establishing a limited guardianship shall make specific findings regarding the individual's capacity, including, but not limited to areas such as residential, educational, medical, legal, vocational and financial decision making, which the incapacitated person retains sufficient capacity to manage. The process requires the filing of documents with the Court, including two physician certifications (or one from a physician and one from a licensed psychologist) which are completed within thirty days of the filing of the guardianship application.
The following are some reasons for considering a guardianship for a special needs adult child:
Education: Unless guardianship is awarded, School Districts must consider a child who has turned 18 to be independent and able to make his/her own educational decisions. Because many special needs children over the age of 18 are entitled to educational services until they turn 21, a parent without guardianship may be excluded from IEP meetings and unable to advocate on behalf of their adult child.
Healthcare: When a child turns 18 years old, he/she is considered an adult in the eyes of the law. He/she is presumed to be competent and able to make his/her own decisions. Doctors and other health care providers must protect an individual’s privacy. They are restricted from discussing the adult child’s medical care with anyone, including the child’s parents, without the adult child’s consent. This becomes complicated in the case of a patient with a developmental disability or special needs which impairs his/her mental capacity. Even if the adult child does give consent, such consent may be ineffective due to the adult child’s lack of mental capacity. Consequently, a health care provider may refuse to discuss the adult child’s medical treatment with his/her parents as well as refuse to accept consent for a medical procedure from a child who lacks capacity.
Financial: Another concern is protecting an adult child with special needs’ finances from individuals who may seek to take advantage of him/her because of his/her disability. A person over the age of 18 could enter into contracts and maintain bank accounts which can be exploited. This is of particular concern if the adult child has significant funds.