Legal Matters to Address Before Your Special Needs Child Turns 18

Patricia TichenorLegal

guardianship plan for special needs child turning 18

As a parent, you’ve been there for your child since day one. You’ve raised them, cared for them, and provided for them financially – and now they’re approaching their 18th birthday and legal adulthood. But what if your child has special needs that they can’t address on their own?

If you have a special needs child turning 18, there are some important legal decisions you’ll have to make to ensure their future, especially when you’re no longer there to provide for them. Here are some issues you’ll need to consider prior to your child’s 18th birthday.

Legal guardianship/conservatorship

While typically developing children no longer need a legal guardian after they turn 18, a child with special needs who requires ongoing support into adulthood will need a trusted, competent guardian and/or conservator.

A guardian/conservator assumes legal responsibility for managing an incapacitated adult child’s affairs, and has the right to make legal decisions for that child. Guardianship is obtained to protect the “person” of the incapacitated adult, meaning medical care, daily care, transportation, etc. Conservatorship is obtained to protect the “property/assets” of the incapacitated adult, meaning serving as a designated payee for their social security, disability, filing taxes for them, and ensuring proper management of their financial resources.

To ensure a smooth legal transition, you should begin the process of seeking to be appointed the guardian and conservator about three months prior to when your child turns 18; however, even if your child is already over 18, it’s never too late to file a petition. 

In most cases, the petition is filed by the mother and father of the child, with each seeking to serve as co-guardian and co-conservator; however, parents who have separated or divorced might agree that the child’s primary caretaker serve first in these roles, while the non-primary custodian be named as an alternate or standby guardian in case the acting parent dies or becomes unable to perform the duties of guardian and/or conservator. Additional standby guardians and conservators can also be included in the petition to stand in line in case they are ever needed, including an adult sibling of your child.

Inheritance and estate planning

If you don’t already have an estate plan for yourself and/or your spouse, now is the time put one in place. Proper estate planning ensures that your child’s inheritance is protected from future creditors or government liens in the event of your death. You can also set up provisions for your child to receive (or continue receiving) federal assistance at the time of your death.

Typically, the parents or guardians of a child with special needs will set up a Special Needs Trust. This legal arrangement is designed to protect your child from their 18th birthday onward. The trust arrangement will account for your child’s specific care, lifestyle, and other needs to ensure that those needs are funded in the future.

One key advantage of a special needs trust fund is that if your adult child is ever sued, the money in their fund will not be vulnerable to a judgment in the lawsuit, because:  (1) it is deemed to belong to the trust entity and not your child personally; and (2) the provisions of the trust control the specific purpose for which the funds are intended to be used. In addition, your child’s inheritance is protected from scam artists or others who might otherwise gain their trust and confidence solely for the purposes of accessing or taking control of their money for their own improper purposes.

You can learn more about special needs trusts from our parent company, The Law Office of Patricia E. Tichenor, P.L.L.C.

Is your special needs child turning 18? My Legal Case Coach can help.

As a unique DIY legal coaching platform, My Legal Case Coach offers comprehensive case form packets to guide you every step of the way in how to handle your own guardianship or conservatorship case in the Virginia courts.  Better yet, when you purchase one of our legal case form packets, you’ll receive one free hour of coaching to assist you with drafting your documents.

In addition, if needed, we can provide 1-to-1 coaching sessions with a licensed Virginia attorney at affordable rates far less than the typical hourly rates charged by attorneys, to hold your hand from filing through the final hearing, and the final post-qualification process you must follow as you take your oath of appointment in the roles of guardian and conservator before the court.

Take our brief quiz to find out which of our packets is right for you, or schedule a complimentary 15-minute consultation to discuss your specific circumstances.