Although someone in your immediate family might not have a disability, you more than likely know someone close to you that does. The last U.S. census proved that about 18% of the entire population in the United States is disabled. It can be helpful for families with disabled children to begin planning early for their loved ones. Common questions relating to planning for young children with disabilities include: What happens when my child turns 18? What happens to my child if something happens to me? How can I set up a framework for my child’s financial future?
In Texas, when a “child” turns 18, the child is considered an adult in the eyes of the law. If a child with a disability lacks the ability to make his own decisions, care for himself, and manage his own finances, the child will likely need a Guardian appointed by the court. Guardian is appointed by the court and given full or partial decision making power for an adult. A Ward is the minor or incapacitated adult in a guardianship proceeding. There are two distinct types of Guardians in Texas: (1) Guardian of the person, and (2) Guardian of the estate. The Guardian of a person has access and the right to physical possession of the Ward and is charged with taking care of the Ward. On the other hand, the Guardian of the estate has the duty to manage the Ward’s property. Often times, a parent of a disabled minor is appointed both Guardian of the person and Guardian of the estate.
A lawyer can assist you with initiating a guardianship proceeding. Before hiring an attorney for a guardianship proceeding, one should check the Texas Bar website to determine whether the attorney has been approved as a guardianship attorney by completing the proper training course. During the guardianship proceeding, the court will appoint a lawyer for the disabled child, a hearing is held, and once a Guardian is appointed, the Guardian must report to the court on an annual basis.
Before a Guardian is appointed, the court must find by clear and convincing evidence that alternatives to guardianship are not feasible. Examples of alternatives to guardianship include, supported decision-making agreements, power of attorney documents, and ABLE accounts. In a supported decision-making agreement, the disabled individual chooses someone called a “supporter” whom they trust to help them get the information they need to make an informed decision. Power of Attorney documents are an available alternative for those individuals that have capacity to execute the documents. Individuals in Texas should also consider an ABLE account, which is a savings account that may be funded by family and friends that does not affect Social Security, Medicaid, and other public benefits.
It is important to consider your own estate plan when planning for a child with disability, in the event that something happens to you. An estate plan should cover who will be the Guardian of any minor child or children, who will receive assets as a beneficiary under the Will, and how the beneficiaries will receive those assets. In the event these questions are left unanswered upon death, the court will pick the child’s Guardian; the state will decide where assets go, and how those people will receive those assets. A common estate plan includes several planning mechanisms, including: a Will, Power of Attorney, Medical Power of Attorney, Directive to Physicians, and the Designation of Guardian for a Minor or Disabled Child. When planning with these documents, one should consider picking a guardian for their child (and a backup), consider a trust for their child because minors in Texas cannot hold property, and picking a trustee.
A parent or loved one can set up a framework for a disabled child’s financial future by determining what government benefit programs the child is on or could become eligible for later on. A way to preserve these benefits is known as a Special Needs Trusts (also known as Supplemental Needs Trusts). A Special Needs Trust is a trust that holds assets for a disabled beneficiary and distributes funds in a way that preserve the beneficiary’s eligibility to receive public benefits. Governmental benefits are designed to provide basic health care, food, and shelter, but a Special Needs Trust is designed to provide additional needs to the beneficiary, such as vacations, that normal governmental benefits do not. Thus, Special Needs Trusts are designed to supplement, and not supplant government programs.
Sprouse Shrader Smith is experienced when it comes to assisting clients with planning for loved ones with disabilities. Contact any of our estate planning attorneys to help with your planning needs today. Guardianships involve many multifaceted legal issues that require the assistance of an attorney. If you are considering a guardianship for your loved one, contact one of our Texas Bar approved Guardianship Attorneys, Abbey B. Dunn or Christopher D. Jones to discuss your situation today.
Article by Abbey Dunn