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Special Needs Guardianships – the Basics Part 2

Posted by Susan A. Katzen | Jul 07, 2022 | 0 Comments

Once you understand how guardianship is intended to help a special needs adult, you must understand the key responsibilities a guardian plays within their legal role. Guardian duties vary depending on the protected person's limitations and abilities. However, some general responsibilities tend to fall to all guardians, including:

  • Ensuring the protected person's living situation is not only safe and appropriate but also the least restrictive environment
  • Providing for special needs adult's daily basic safety and needs
  • Making routine and ordinary medical care appointments, decisions, and treatment arrangements
  • Providing for the adult's future educational, recreational, and social needs
  • Applying for necessary benefits and health insurance
  • Advocating for the independence and legal rights of the ward

Guardianship Roles

A special needs attorney or disability lawyer will be able to outline the details of responsibility relevant to your state laws and benefit eligibility rules. For instance, parents can't receive a Medicaid stipend to be their child's caregiver and legal guardian.

What qualities do a guardian and successor guardians need to possess? Technically, any competent person over 18 may be a guardian. Parents will often request the court to appoint one or both of them as guardians. Even with two-parent guardianship, it is still necessary to select a successor guardian.

Successor Guardians

Conversations with potential guardian candidates must fully outline the responsibilities and necessary resources accompanying the role. One of the biggest issues to discuss is where the special needs adult will live. Possibilities include:

  • Independent living in a residential facility
  • At home
  • In the proposed guardian's home

There are some instances when the guardian will move into the protected person's home to promote and maintain the ward's stability.

Letters of Intent and Financial Plan

When choosing a successor guardian, parents must prepare a letter of intent (LOI) providing information about family and friends' roles in the child's life and how to contact them. Include emotional factors, daily routines, and habits for continuity of the special needs person's lifestyle. Your LOI should also have a funded comprehensive special needs financial plan and the appropriate legal documents that formalize and direct the plan's implementation. This financial plan needs to include government benefits and how to ensure eligibility for these programs remains intact for the protected person.

Ending the Guardianship

A guardianship will end upon the death of the protected person or the death of the guardian. It may also end when a guardian is unable or unwilling to perform duties of guardianship. This situation requires a petition to the court that they no longer accept the inherent responsibilities, at which time the court will appoint another guardian.

The Financial Relationship Between Guardians and Trustees

Generally, a guardian is not personally financially liable or responsible for the protected person from their resources. However, the guardian or conservator usually is responsible for managing the individual's financial resources. At times the guardian may share financial management duties with a representative payee or trustee from a special needs trust. It will depend on the parents' special needs financial and estate plans regarding how money is managed. In the case of a special needs trust, a guardian will request funds from the trustee to maintain the protected person's household and pay for vacations, trips, clothing, and other permissible expenditures for the ward's benefit. It is mutually beneficial that the guardian and trustee have a trusting and respectful relationship since the trustee's fiduciary responsibilities may conflict with a guardian's financial request.

Talking to Those Who Want to Be Involved in the Protected Person's Life

When and how do you go about asking someone to be a guardian? Guardianship planning is an important legal task for all parents but especially for those with a child with special needs. Open discussions and ongoing communication with individuals who wish to be involved in the special needs person's future care are crucial for the best outcomes. There is much to consider as some people will be well-suited to a task while others will not. Spreading some tasks among family members is useful but identifying one guardian to act as a point of contact to represent the protected person's needs fully is a must.

You may nominate this guardian in a will when a child is under 18 or if special needs, 18 and over. The court will still need to confirm the guardian after the parents' deaths, but including the nominee in the will makes the parents' preference known. It is possible to designate a standby guardian. Most states allow this designated guardian to care for their special needs child or adult if the parent becomes incapacitated or dies. If there is reason to believe this choice of guardian will be contested by the other parent or family members, the guardianship designation can receive pre-approval or confirmation by the surrogate or probate court before the parent dies. Not all states permit this pre-confirmation process; however, if it is available in the state where the child lives, the parent should nominate both a guardian in their will and designate a standby guardian.

Taking care of your children's future is especially important and challenging when one is special needs. Proper planning with a special needs attorney or disability lawyer can ensure the unique requirements for your family member with a disability dovetail with the overall estate plan of your family.  If you have any questions or need additional information, please give us a call at (714)374-2244, or fill out our Contact Us form here.

About the Author

Susan A. Katzen

"I firmly believe our clients should be treated the way I would want my own family members to be treated. As a result, not only have I put together a compassionate and highly skilled team of people, but together we have served families from the grandparents down to the grandchildren. My staff and...


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