Adult guardianship is a very restrictive process and should only be used when absolutely needed. Even though you may have a child with a disability or special need, it may not rise to the level of disability required for the adult guardianship process.
Whether Adult Guardianship or an alternate plan of action is needed will depend on your answers to the following relevant questions and steps:
First Step: It is important to start by analyzing your child/loved ones needs. You should always begin by looking at the current needs first and then their projected future needs. How do you do this? You start by asking yourself the following:
- Is your child or loved one able to function on their own?
- Will your child or loved one able to manage their own finances in the future?
- Is your child capable of making an income on their own without your assistance to cover their daily life expenses?
- What level of supervision will be needed, if any, over their finances or their physical person?
- How much support are you currently providing to them?
- Do you have any concern that your child or loved one will fall victim to others?
Grade these concerns should be graded on a level of 1 to 5, 1 being the lowest level of concern and 5 being the highest.
Second Step: Analyze your own plans for the future. All parents and/or caregivers must have their own estate plan completed prior to setting up any plan for a child or loved one.- Do you have your own Estate Plan in place? The proper and best plan is to have a Revocable Living Trust and a Will that includes Guardianship procedures over any minor, adult with disability, pet, or loved one. Families should always understand that when a matriarch or patriarch of the family is removed, problems typically occur.
- Formalizing a written plan is imperative so that your wishes are truly met.
If you do not currently have your own plan your first step should be to think about the following questions:
- Who will manage things if you are no longer here?
- How will your family access your money/finances?
- Who will take over if you are mentally or physically incapacitated?
- How will any minors, people with disabilities, loved ones, and/or pets be cared for without you?
- Who will care for them?
- Who is best suited to make decisions and manage this process?
Step 3: Having the conversation with family members. Your family should always provide you with their acknowledgement of your plan, agreement to their role or the terms of the plan, and finally provide their understanding of where the ORIGINAL plan is, where the assets are, and what their role entails in the future.
If you fail to discuss your plan with your family (1) they may not agree to appointment and thus refuse to care or assist; (2) they may fail to provide because they do not have the funds to execute your wishes as they have no idea where the immediate funds are located; (3) they may not know what their role actually entails and thus improperly complete the necessary tasks; and (4) if the original documents cannot be located your family will have to go thru the probate process. This is what all families should avoid.
Step 4: Analyze how services or needs are to be paid for in the future. If your child with a disability or special need does not have funds or resources to obtain necessary services-what will that look like for them. Example: You set up a life insurance policy that upon your death your child or beneficiary receives those funds. Can your child or loved one handle a large disbursement of funds without issue? Can they manage this money and the loss of you? Will the state cease access to these funds to provide services?
Step 5: Determining if Adult Guardianship is needed. If you have determined that your child or love one may have may need substantial support based on the following than Adult Guardianship may be needed. Adult Guardianship should always be started when your child reaches the age of 17 years old to insure it is completed at their 18th birthday.
If your child is more high functioning, you may just need to obtain a Power of Attorney for your child or loved one or add a restrictive trust to your current estate plan to manage their disbursements.
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