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Guardianship: Is It The Right Choice When Your Special Needs Child Turns 18?

Guardianship Special Needs

In most states, a parent is deemed to be the legal guardian of his or her child until their child turns 18. Up until that point, parents make all the medical, financial, educational and day-to-day decisions for their children.

However, once your child turns 18, he or she is legally considered an adult and your authority to make decisions on your child’s behalf stops. This usually isn’t an issue, unless you have a special needs child that may not be ready or able to make good decisions about their care.

Following is a discussion of some options of what you can do when your special needs child turns 18.

Guardianship

With guardianship of your child, you have the legal authority to make decisions about your child’s healthcare, housing, food, clothing, and other subjects that affect your child such as decisions about a their income, property, public benefits and other financial matters.

Guardianship is not automatic. And when your child turns 18, parents (or an adult willing to oversee your child’s care) must petition the court for guardianship.

However, not every child who has disabilities needs to have a guardian. With appointed guardians, your child loses a great deal of independence. Your child will no longer be able to make decisions about their personal life, health care, financial or legal matters.

Alternatives To Guardianship

Most state laws require that guardianship only be imposed only when less restrictive alternatives would not best benefit and protect the child.

Following are a few examples of less restrictive alternatives to guardianship.

Conservatorship

If your child has the capacity to make some decisions, an option to consider is Conservatorship. The individual appointed to serve as Conservator manages your child’s property and financial affairs. Most other decisions are left up to the child.

Power of Attorney

Power of attorney is given to a responsible adult (ex. a parent) that acts on your child’s behalf on financial, legal or business matters but the child still retains the right to act on his or her own behalf.

Representative or Protective Payee

If your child receives Social Security, benefits from the Veteran’s Administration, Railroad Retirement, welfare or other state or federal benefits, the Court can appoint someone to help manage their payments from these entities. All other decisions are left up to your child.

Factors To Consider When Making This Decision

It’s important to take into consideration several factors when deciding whether your child needs a guardian or some other form of support.

  • Your child’s ability to make sound decisions, including understanding the effect and consequences of his her decisions and actions
  • Your ongoing need to be involved in your child’s medical care
  • Your need for continued oversight over your child’s financial affairs
  • Your child’s needs and wants
  • Your child’s ability to communicate his or her needs
  • Your child’s level of independence with respect to self-care (ex. feeding, dressing, bathing, etc.)
  • Whether your child will require outside support such as assisted living or a home health assistant

When To Make A Decision

The conversations and decisions about how your 18-year-old child should be cared for need to happen BEFORE he/she turns 18. These conversations are not easy. In fact, they’re very difficult and there are many variables to consider. As a result, it’s important to start thinking about your child, his or her needs and long-term well-being now.

We Can Help

Although we cannot make the decision for you about what’s the right answer for you and your family, we can guide you through the decision-making process and help you with the legal aspects. I can be reached at DJ@JeyLaw.com or 678.325.3872 for a free initial consultation.

If Your Child Has Autism, Make Sure These 4 Things Are In Your Will

Autsim Will & Special Needs Trust

Although everyone should have a will, as parents of special needs children, we need wills to ensure that our kids are well cared for and have a good quality of life after we pass.

My son has a dual diagnosis of Autism and Williams Syndrome. Here are four things I recommend all parents of children with Autism – or any special needs – include in their wills or estate plans.

1) A Special Needs Trust – A will is a basic legal document that details your last wishes and is often used to distribute your property or assets.

However, a basic will does not include provisions that are needed to protect and provide for your special needs child. This is where a Special Needs Trust comes into play. A Special Needs Trust can be a part of your will or it can be a stand-alone document. It allows you to designate and qualify your assets in a way that doesn’t penalize your child when it comes to his or her public benefits.

Eligibility for many government benefits is determined based on the resources your child or adult ward holds in his or her name. If your special needs child has too many resources, even by just one dollar, he or she may not qualify for, or may even lose, benefits such as Supplemental Security Income (SSI) and Medicaid. Even if your child does not currently receive government assistance, he or she may need it in the future.

A special needs trust is a way to protect your loved one’s current resources and future benefits. Through a special needs trust you can leave assets to your child or ward without negatively impacting his or her government benefits.

2) Designated Guardian – We often assume that a member of our family – maybe a sister or our own mother – will automatically be given custody of our children if something happens to us. However, this is not true unless you have a will, trust or estate plan in place that specifically names them as guardians.

Without a legal plan in place, anyone can request custody and a judge will decide with whom your child/children will live with. Choosing a guardian is perhaps one of the most difficult decisions to make. It’s important to choose someone you trust and who will respect your wishes for your child(ren).

Things to consider when selecting any child’s guardian are the guardian’s age, his or her family values, parenting style, character, willingness to serve as guardian and whether he or she already has an established relationship with your child.

With a special needs child there are even more considerations. Think about the traits that you, as a special needs parent, need to raise your child and does the guardian have these traits?  My top three traits for special needs guardians are 1) Energy; 2) Patience; and 3) The ability to advocate for my child. (See Related Post: 10 Tips On Choosing The Right Guardian)

3) Guardianship Letter & Instructions –  Once you’ve selected a guardian, you need to put them in a position to succeed if they are forced to step into your shoes. You should write instructions to the guardian about things they will need to know on how to parent your child.

Include things like your child’s routines, medicines, information about his or her medical providers, how to deal with sensory meltdowns, what is the best way to get them to eat or sleep. Simple things like their favorite stuffed animal that they need to go to sleep with at night or where they like to hide their favorite sippy cup or the name of their favorite YouTube videos are small details – but they are of big importance to our children.

We’ve had years to learn these things about our kids. Help your child’s guardian avoid having to learn from experience by documenting what you already know!  (See Related Post: How To Create A Successful Care Plan For Your Child’s Guardians)

By painstakingly detailing your routines and including details about what makes your child comfortable or happy in your care plan, you are setting your guardians up for success and for a smooth transition in case something were to suddenly happen to you and your spouse.

4) Conservator or Trustee – A conservator or trustee is someone to handle all financial decisions related to your child. A conservator helps ensure that money left to your special needs child is used for your child in ways that best benefit  your child.

Often times families ask me if their child’s designated guardian should also be the conservator or trustee. It depends. Your guardian can serve as both, but sometimes families prefer set up some up checks and balances by selecting different guardians and conservators. It’s important to select someone you trust and who will make smart financial decisions on your child’s behalf.  The guardian and the conservator work together in the best interest of your child.

Getting Started

As a parent of a special needs child and an estate planning attorney, I understand the challenges of adding one more thing to your plate. However, putting into place a will to protect your child with special needs is something we all need to do sooner rather than later – just in case.

We’ll walk you through the will planning process step-by-step. Initial consults are free.  We want to help you create a legal plan that best protects your child with special needs as well as your final wishes for your entire family. I can be reached at DJ@JeyLaw.com or 678.325.3872.

 

It’s All In The Details – Creating A Successful Care Plan For Your Children’s Guardians

Death isn’t something we like to talk about, but it’s critical to have a detailed plan for your children’s guardians – just in case. Wills, Trusts & Estates

This past week, my parents came to help my wife and I as we prepared for my wife’s upcoming medical procedure. They came early to learn the kids’ routines such as where their school is, what they eat and their bedtime routines.

Most of us don’t really think much about our day-to-day routines. In fact, we just go. We’re pretty much on autopilot. Having my parents come to help me with the kids was a good dry run for if my wife and I were to unexpectedly pass and we needed our children’s guardians to step in and follow the instructions we’ve prepared.

To help us prepare for her procedure, which would leave her out of pocket for a couple of weeks, my wife typed out every little detail about the kids’ days. Or so we thought. When we did a dry run with my parents, we quickly realized that there were several little – but very important details – that we forgot to include in our notes. And it was these details that would make the difference between a smooth and successful day with our kids versus potential meltdowns and a frustrating experience for everyone.

My wife covered the big ones – what time the kids take their medications, how much and how. Who likes what food, how to maneuver through the carpool line for school and what time they go to bed.

What we forgot to include were things like EXACTLY how to cut my son’s peanut butter sandwich. In her directions, my wife said, “Cut the peanut butter sandwich.” But as my parents were making my son’s peanut butter sandwich during the dry run, they asked, “Do you cut it in half? Do you cut it in quarters?” No. Actually, we have to cut his sandwich into quarter-sized bites and we have to cut off the crust. Wow. Something we do automatically. Failure to include that kind of detailed information could have derailed lunch for my six-year-old special needs son who is in feeding therapy and needs small bites of food to be successful with eating.

Next, my wife wrote specific notes about how to pick up our little girl from preschool (we walk in to get her). As my wife did a walk through with my parents, again, she realized she forgot to include some pretty important details such as:

  • Make sure you have a photo ID or the carpool tag to identify yourself when you pick her up
  • As you walk out of the school, you have to hold her hand as she tends to run out into the parking lot (she’s only 2)
  • And that you need sanitize her hands as soon as you get the car as her brother is medically fragile and a two year old’s hands are a magnificent host for germs.

Again, things we just do without even thinking – but that are really important for keeping our kids safe and ensuring a smooth day.

Further, when my special needs son says “Don Clare” he’s not asking for a person. He’s asking for one of his favorite books. To be honest, I didn’t even know this one. We don’t have a book titled, “Don Clare” and none of the books have a character named “Don Clare.” My son has just begun using two to three word sentences and this was his interpretation of the book titled “Bear Snores On.” How my wife figured this out, remains a mystery to me – and it would have remained a mystery to my parents if my wife hadn’t written it down in our notes after my dad asked her what my son was asking for.  

Our kids, like many others, thrive on routine and have favorite objects or TV shows, books or movies. Simple things like their favorite stuffed animal that they need to go to sleep with at night or where they like to hide their favorite sippy cup or the name of their favorite YouTube videos are small details – but they are of big importance to our children and bring them great comfort.

By painstakingly detailing your routines and including details about what makes your child comfortable or happy in your care plan, you are setting your guardians up for success and for a smooth transition in case something were to suddenly happen to you and your spouse.

Need help planning for your children’s future? We can help. Contact DJ Jeyaram at DJ@JeyLaw.com or 678.325.3872.

5 Things People Forget to Include in Their Will

DJ Jeyaram is quoted in this article published on GoBankingRates and Philly.com. Congrats DJ!

Article by Alaina Tweddale

Many people overlook writing a will until they become parents, launch a business or buy a first home. And even when they do finally craft this important document, estate and financial planning experts say, it is easy to overlook some important details.

We uncovered the biggest things people overlook when drafting a will. Find out if you’re missing a one of these key elements.

1. Alternate Beneficiaries

While most wills include at least one primary beneficiary, it is a common mistake to fail to prepare for a backup plan in the event the beneficiary predeceases the testator.

Furthermore, “it is important to consider whether a beneficiary is capable of inheriting the asset and can manage the asset properly,” said Sandra Martin Clark, partner at the law firm of Manning, Fulton, & Skinner in Raleigh, North Carolina.

Martin Clark says some reasons a loved one should be passed over for beneficiary status include:

  • Age
  • Mental capacity
  • Inability to properly manage assets

“Oftentimes, after a will is drafted and signed, the document is never looked at again until someone has passed away. At that point, it is too late to correct any error or consider a more appropriate planning opportunity,” said Martin Clark.

If the testator’s intent is unclear, or the beneficiary is a minor or found to be incompetent, it can be overwhelmingly difficult and costly to find a solution, Martin Clark said.

2. Provisions for Digital Assets

Digital assets are among the most important things left out of wills today, said Steven J.J. Weisman, an attorney in Amherst, Mass., professor who teaches estate planning at Bentley University, and author of “A Guide to Elder Planning.”

Websites, domain names and online accounts can all have economic value. Planners should also include account numbers and passwords within a will.

“So much of what we do is online or on our computers,” said Weisman. “Without the proper user names and passwords, as well as authorizing someone to have access to these matters, the estate can be severely compromised.”

Information for social media accounts can be important. Although there may not be a monetary value associated with a Twitter handle or a Facebook account, it can be awkward for loved ones to see greetings or birthday wishes posted to the deceased’s wall or news feed.

3. Prearrangements for Pets

Although you cannot leave assets or property directly to a pet, you can – and should – specify a caregiver for your pet, said David Walters, a certified financial planner and portfolio manager with Palisades Hudson Financial Group in Portland, Ore.

Consider naming a secondary caregiver in the event the primary caregiver is unwilling or unable to care for your pet, Walters added. Pet owners can even name a beneficiary for assets earmarked for the care of your pet.

If you do not make any specific provision for your pet’s care, the arrangements may become a source of contention among your loved ones. In the worst case, your pet could end up in a shelter,” Walters said.

4. A Personal Property Memorandum

Personal property mementos can be the most prized items in the estate of a parent or loved one.

“Sometimes, what people fight over are the least valuable items,” said Erik Hartstrom, attorney with Estate Plan Pros in Elk Grove, California.

Examples include a grandfather clock, Mom’s favorite costume jewelry, or even a $1.50 tchotchke Dad kept lovingly tucked in his dresser drawer.

An estate that has heirlooms worth a substantial amount of money can exacerbate the problem.

When there is no written personal property memorandum affixed to the will, beneficiaries may quarrel and sometimes even fracture long-standing relationships.

“Have a conversation with your beneficiaries and find out what is meaningful to each,” said Hartstrom. “You may be surprised.”

5. Trustee and Guardian Designations

It is critical to keep contact and designation information about trustees and guardians up-to-date, said Atlanta-based estate planning attorney DJ Jeyaram.

“This is especially important if both parents or a single parent suddenly passes and there are minors involved,” he said. “The guardians need to be immediately notified to ensure proper care of the children.”

A named trustee and guardian don’t have to be the same person. Without explicit instructions, an unintended new guardian may raise a child, or care for an incapacitated adult. Assets intended for the care of the minor can transfer to someone the deceased did not prefer.

In a worst-case scenario, said Jeyaram, “the children may be put into state custody.”

When you’re ready to put your final wishes on paper, thoroughly consider how you want all aspects of your estate handled – even the seemingly insignificant items. An experienced estate attorney can help you determine all the items you may want to consider when planning your will.

Two Things Every Special Needs Parent Should Know

Free workshop hosted by Jeyaram & Associates

Jeyaram & Associates is hosting a free workshop on how to win an appeal if you’ve been denied Katie Beckett and how to protect your special needs child’s benefits with a special needs trust.

DJ Jeyaram, Esq. is the leading Katie Beckett appeals expert in Georgia and the father of a special needs child. Mr. Jeyaram has intimate knowledge of the Katie Beckett appeals process and is a former administrative law judge.

After the presentation, Mr. Jeyaram will answer questions about appeal Katie Beckett denials and how to protect special need children’s benefits – now and in the future.

Special Needs Trust

  • Who: Special needs parents and caregivers
  • What: Free workshop presented by DJ Jeyaram, Esq.
  • When: October 22nd at 6:30 p.m.
  • Where: Kidspeech in Lawrenceville, GA

***Space is limited. Must RSVP to Lheyward@jeylaw.com by 10/17***

Without A Will, A Court Could Decide Custody Of Your Child

wills, Trusts and Estates10 Tips On Choosing The Right Guardian

Sadly, during the past couple of weeks, we learned of the passing of several friends and acquaintances. All of their passings were sudden. A heart attack. A car accident. A sudden mystery illness. An aneurism. To be honest, we became a bit leery about answering our phones.

Death isn’t something we like to think about, let alone talk about. However, these past few weeks were a stark reminder of how important it is to make sure we prepare for the future and to make sure our families are protected – especially if you have minor children.

We often assume that a member of our family – maybe a sister or our own mother – will automatically be given custody of our children if something happens to us. However, this is not true unless you have a will, trust or estate plan in place that specifically names them as guardians. Without a legal plan in place, anyone can request custody and a judge will decide with whom your child/children will live with.

As a result, it’s imperative to establish a will and choose a guardian for your child.

Following are some things to consider when choosing the right guardian:

  1. Age – How old is the person you’re considering to assume custody of your child if you pass? You want to make sure the potential guardian will be around for a while to raise your child.
  1. Ability – How is the health of the potential guardian? Does he/she need a lot of medical care? Is he/she emotionally stable? How many other children does the potential guardian already care for? Does he/she have a demanding job or a job that requires him/her to frequently travel? You wan to select someone who is going to be physically present and give your child the attention he/she needs – especially since your child will already be dealing with loss and grieving.
  1. Already established relationship with your child – Does the potential guardian already know your child and have an established relationship with him/her? Imagine being forced to live with someone you don’t know. Add on the stress of losing a parent. It’s imperative that your child know and be comfortable with the potential guardian.
  1. Location – Where does the potential guardian live? Is this somewhere you’d want your child to live? If you currently live in the city and your potential guardian lives in a small, remote town – would your child be happy and thrive? Does the potential guardian live in a good school district or are there good private schools nearby?
  1. Family values – Finding a potential guardian with the same family values can be challenging – but it’s perhaps one of the most important criteria to consider. Is this individual willing to instill and be supportive of your family values – especially if they do not mirror yours?
  1. Parenting style – Does the potential guardian believe in time outs? Is education important? Is the potential guardian strict or nurturing? You’ll want to choose someone who reflects your parenting style to minimize the stress and confusion on your child.
  1. Stable and loving – Selecting a guardian who can provide a stable environment for your child is critical – especially as your child will be grieving. Your child will look to the guardian for emotional and physical stability. Is the guardian in a stable relationship? Is his/her spouse open to being a guardian as well?
  1. Willing and want to serve as guardian – Taking on custody is a big responsibility. While some family members may love your child – assuming custody and providing for his/her every need is a different story. It’s important to have open and honest conversations about potential guardians to see if they want to serve as a potential guardian. Now is NOT the time to try and avoid hurt feelings. Your child’s well being and future is what’s most important.
  1. Character – Does your potential guardian have a court record of drug or alcohol abuse or a criminal history? If so, a court will reject and override your selected guardian. You want to select someone who will serve as a good role model for your child.
  1. Back up – Life happens. Your designated guardian may become incapacitated or have a change of heart upon your passing. It’s critical to have a back up potential guardian to ensure your child has a safe, loving and stable home.

It’s important to remember that a guardian is NOT required to financially support your child. As a result, it’s important when you’re setting up your will, trust or estate, to legally earmark funds for your child in a trust. Then, you will need to select an individual to oversee the disbursement of the money in the trust. This person is called a trustee. Often times, the trustee is different from your child’s guardian.

Selecting a guardian for your child can be a difficult decision – but it’s an important one. By legally documenting your wishes for your child/children, you help ensure that your loved ones are cared for and that a custody battle does not publicly play out in court.

Once you’ve carefully thought about and chosen a guardian for your child, we encourage you to consult with an attorney to help document your decision so that it becomes legally binding.

If you have questions or would like assistance, please contact DJ Jeyaram at DJ@Jeylaw.com or 678.325.3872

Special Needs Trusts & Estate Plans – When’s The Right Time?

DownSyndromeGirlNow.

As a parent or guardian of a child or adult with special needs, one of our main concerns is what will happen to our loved ones when we pass? Who will take care of them? Will they have enough money? Will they be OK?

And while most of us try NOT think about dying, it’s an important step in ensuring that our loved ones will be protected and cared for upon our passing. Putting into place a special needs trust is something we can do to help ensure that our child or adult ward will be well cared for and have a high quality of life.

Too many times we’ve seen families devastated by the sudden loss of parents or guardians. Now is the time to plan and put into place a legal plan that will help protect your loved ones and their government benefits.

Eligibility for many government benefits are determined based on the resources your child or adult ward holds in their name. If they have too many resources, even by just one dollar, they may not qualify for, or may even lose, benefits such as Supplemental Security Income (SSI) and Medicaid.

Even if your child or ward does not currently receive government assistance, he or she may need it in the future. A special needs trust is a way to protect their current resources and future benefits. Through a special needs trust you can leave assets to your child or ward without negatively impacting his or her government benefits.

Government benefits only cover basics such as food, clothing and shelter. Through a special needs trust, a designated trustee for your loved one will be able to provide your child or adult ward with access to things such as:

  • a personal care attendant
  • out of pocket medical and dental expenses
  • vacations
  • home furnishings
  • vehicles
  • hobbies
  • and education.

Jeyaram & Associates has extensive personal and legal experience with setting up special needs trusts and estate plans. Please contact DJ Jeyaram at DJ@Jeylaw.com or 678.325.3872