By Sarah Stewart Legal Group
Each family with a child with Special Needs has specific and unique circumstances and concerns. Their legal issues are also unique. This makes finding a trustworthy professional who can help them navigate those problems challenging.
If you are a family with a loved one with Special Needs who will soon be over the age of 18, here are some legal issues to consider:
(1) Estate Planning
When a child with Special Needs becomes an adult with Special Needs, there are more options available for government benefits. What is available to whom depends on the specific needs and circumstances of each family. Some children will be able to live mostly independently from their parents and manage their own assets, others will not. Some will be able to work part time, others will not.
Be sure to research all the options available for your family. Think about how your child will react and his or her ability to manage assets they may inherit when you’re gone. Will he or she need help managing their day-to-day lives? If so, you may want to consider a Special Needs Trust.
Also, keep in mind that some benefits may be income-based. For those benefits, a Special Needs trust will usually be required to protect your child from losing those assets once you’re gone. If your child lost his or her benefits, would he or she be able to navigate the system to get them back? To learn more about Special Needs Trusts, click here.
(2) Adult Guardianship
Another potential problem to consider is what happens when your child reaches the age of 18 and is considered an adult. In Oklahoma, 18 year-olds are able to enter agreements with people and corporations and are considered capable of making business and personal decisions for themselves without parental consent. Though, arguably, most 18 year-olds do not truly have that capacity, the law is the law and your child will be faced with making adult decisions everyday when they hit the magical age.
Most people with Special Needs are more vulnerable to bad people and bad circumstances. If you have concerns about your child’s ability to “adult” when he or she is 18, you will need to file for guardianship to protect him or her. To file a guardianship, you will need evidence of the condition that makes your child unable to care for him or herself physically or otherwise.
You will file this information with the Court, issue notices to the closest family members and the child, set and attend a hearing and provide annual reports on the child’s condition to the Court. This is the only way to ensure your child is fully protected.
Some families choose not to seek guardianship. Maybe the child is mostly capable of “adulting,” or maybe the network the family has built is supportive, understanding, and does not require a guardianship in order to function. You must review your own familial situation to decide if guardianship is right for you.
If you need help navigating these complex issues, be sure to reach out to professionals you can trust. You will need to find professionals who are familiar with Special Needs issues and understanding of your situation.