Guardianships & Special Needs

Protect children or loved ones with a disability.
Guardians protect another’s physical well-being and finances.
Parents of underage and special needs children need a plan.
Waiting until a crisis to act can make this process difficult.
Don’t wait; make sure they are protected.

What Is It?

A guardianship is the legal right to help another person (usually called a “ward”) with his or her life decisions. Guardianships can be very broad or specific in scope. Usually, they are granted for one of two purposes: to give the guardian control of the ward’s physical well-being, or to give the guardian control of the ward’s finances. While they often go together, there are circumstances where it is a good idea to divide these rights between two or more people.

Special needs planning is the process of ensuring that you, as a guardian, are able to fulfill your obligations in caring for the ward, especially if the ward is a family member or loved one. This is accomplished through contracts, trusts, and other legal documents, all of which are designed to supplement your estate plan to take care of the special needs of the ward.

Is It for Me?

Though there would be no need for guardianships in a perfect world, they can make the difficult process of managing the needs of a loved one a little bit easier. If you have a loved one struggling with an incapacity or disability, you should consider a guardianship. Additionally, if you are a parent of an underage or special needs child, it is very important to have a comprehensive special needs plan in place to ensure that your child is cared for and protected if something should happen to you.

What Is Involved?

In order to get a guardianship, you must petition the court for these rights and prove that the ward can’t make decisions in his or her own best interests due to infancy, incapacity, or disability. Generally, there will be an evaluation of the situation by the court and a subsequent ruling. If the guardianship is approved, the judge will issue you legal documents allowing you to act on behalf of the ward.

On the other hand, special needs planning does not usually involve the court system. In fact, most of the time it is a relatively simple process of updating your estate plan to provide for the care and protection of the ward.

What if I Do Nothing?

If you wait to obtain a guardianship, it can create a stressful and difficult situation during an already emotionally taxing time in your life. Without a guardianship arrangement in place ahead of time, the state will often appoint a guardian ad litem to make decisions on the loved one’s behalf, and you or your family may not agree with the decisions the guardian ad litem makes.

Additionally, without having special needs planning in place, your loved one may not have necessary care if something should happen to you which would prevent you from meeting his or her needs. While the absence of planning ahead of time can sometimes lead to long, contentious custody battles, more often the problem is just confusion and uncertainty in regard to how to care for the ward. These situations can be avoided with foresight and a little bit of action.

Can I Do It Myself?

It depends. If you want to put a plan in place to take care of someone who is not yet incapacitated or disabled, it can generally be easily handled as an addition to a basic estate plan. However, if the incapacity or disability has already taken place, it will generally involve at least one court appearance. Though it is possible to do it yourself, it isn’t a simple process, especially if you believe it could be contested. In those situations, it’s advisable to have an attorney assist you with the process.

How Much Will It Cost?

As above, if you are planning ahead, the legal work involved is not terribly complex. Most guardianship issues can be resolved ahead of time for a few hundred dollars. Once court appearances are involved, the cost can significantly rise, especially if there is a lot of disagreement on what should be done on the ward’s behalf. Additionally, the more complicated and involved the care you provide for the ward, the more expensive it will be to ensure that the same level of care is maintained should something happen to you. Most cases are resolved for a fee between $1,500-2,500.

Where Do I Start?

The simplest way is to discuss the issue of guardianship with your family member or loved one. The more agreement that can be reached ahead of time, the easier it will be to move forward. Additionally, consider what problems or situations could prevent you from caring for the ward, and how you would want those issues to be resolved. When you’re ready, give us a call at 704-325-9325 to schedule a consultation. We’ll listen to your goals and concerns and implement a strategy that provides the care and protection that you and your family deserve.

Author: Nathan Workman