Your Developmentally Disabled Child Turns 18
Your child is now an adult, but what does that mean for you when they still cannot care for themselves? Once your child turns 18, they become an adult and are legally able to make all of their own decisions. If your child has a developmental disability like autism, then they may not be capable of making their own decisions. If that is the case then it is time to ask the Court to appoint a Conservator. In California, a Guardianship is for minors and Conservatorship is for adults; in other states that terms may change.
How Do I Get a Conservatorship?The process will of course involve filing out the correct forms; your local court web site should have them all posted with a guide.
You will normally also need to get a doctor's opinion that the child is not capable of making their own decisions.
The court will appoint someone to meet with your child and investigate whether the chosen Conservators are reliable.
Then you will have a short hearing with the judge, where the judge would obviously like to meet your child before taking away their rights. A normal Conservatorship gives you control over where they live, who the are friends with, who they can marry and medical decisions. Control over assets is a different and separate kind of Conservatorship (of the Estate) and is more complicated.
Who Should Be the Conservators?The parents are normally the Conservators but think ahead on this one. Once the Conservatorship is established, it will be troublesome to add new Conservators as people pass away or get overwhelmed; in California you have to start all over from the beginning.
Remember that your child will probably outlive you, maybe by decades, so try to find someone younger to be co-Conservator with you (siblings work best).
What Happens to My Child After I Die?If you have enough assets, you can set up your child in a private care facility. I would recommend a Trust fund to ensure the assets are managed properly and with some legal protection from fraud.
If you do not have that level of assets, then you can expect your child to live in a care facility paid for by the government. If your child has their own assets, like an inheritance, then the government will require that money be spent before the government will start to pay the tab. To avoid this, you can put money into an ABLE account or use a Special Needs Trust; both of these options will provide money to enhance your child’s life without interfering with the government benefits.
ABLE vs. Special Needs TrustYou can fund an ABLE account now, with today’s money, but there are dollar limits. You can fund the Special Needs Trust as part of your estate plan, funding it after you have passed away.
Both programs have limits as to what the money can be spent on. In general, the money cannot be used to pay for what the government is already providing, and you cannot give cash. The money otherwise very useful for the everyday things that your child may enjoy.
Planning Your EstateYou have hard questions to face. Are you able to trust your other children to take care of your disabled child after you are gone? Leaving all of the money to your healthy children with the hope that they remember their disabled sibling may not work out as well you hope. Money does strange things to even nice people.
Leaving the money to your disabled child is a problem because, not only are they not able to manage their money, but it will interfere with government benefits; you would essentially be handing it to the government.
The usual solution is to leave sufficient money to the disabled child in a Special Needs Trust (often drafted as part of your own Living Trust). The downside of this Trust is that upon your child’s death, whatever is left in the Trust is used to pay back the government for expenditures. To avoid this problem, the best you can do is make a reasonable estimate of how much money that child may need, rather than over-funding it to the detriment of your other heirs.