As a parent, you’ve been there for your child since day one, witnessing every achievement and milestone. When raising a child with special needs, you may have had to see your child through more challenges than most, and helping your child transition into adulthood is no different.

While most parents find this milestone tricky to navigate, it might be especially fraught as a parent of a child with special needs turning 18. You’ll have to make significant legal decisions to ensure their future, especially when your role is no longer that of the primary caregiver.

Here are some situations you’ll need to prepare for before your child’s 18th birthday.

Legal requirements

In the United States, when a child turns 18, they become legally responsible for their choices and actions. However, some legal requirements and exceptions may apply to children with special needs. Here are some initial steps to take before your child’s 18th birthday:

1. Apply for necessary government identifications. If you haven’t done so, now is the time to apply for your child’s Social Security card, separate bank account, driver’s license, or other state-issued identification. Your child will need these points of identification to apply for applicable services and a separate bank account to accept employment or SSI checks.  
2. Submit Selective Service paperwork. If your child identifies as male, he’ll need to complete his Selective Service registration, which can serve as his state-issued identification if he’s unable to obtain a driver’s license.
3. Apply for Supplementary Security Income (SSI) Income. Your child’s SSI eligibility could change when they turn 18. If your child was rejected for SSI as a minor, they would most likely qualify as an adult because Social Security Administration (SSA) can only consider the adult applicant’s resources and income when determining if they are eligible for benefits.

Legal guardianship versus conservatorship

If your child needs assistance managing their financial and legal matters or day-to-day activities, you may want to consider petitioning for legal guardianship or conservatorship. Typically, children no longer need a legal guardian after they turn 18. However, a child with special needs might require ongoing support into adulthood.

While each role assumes legal responsibility for managing an incapacitated adult child’s daily life and affairs, there are key differences to be mindful of:

• Petition for Guardianship. This is a request to the court to grant a guardian the right to make daily life decisions such as medical care, daily care, transportation, etc., for your child. A guardianship will grant you the right to make daily responsibilities for them, including their medical care, living arrangements, and employment. 
• Conservator. A conservator grants the authorization to make financial decisions on behalf of the special needs child. As a conservator, you must protect your incapacitated child’s property and assets, which includes filing their taxes, serving as a designated payee for their social security and disability checks, and ensuring proper management of their financial resources.

Depending on your child’s abilities, partial or limited guardianship or conservatorship might be the best option for your family. This option allows your child to retain the right to make most of their own decisions, and you’ll only have the ability to make specific decisions for your child, all of which are specified by the court’s ruling.

To ensure a smooth legal transition, you should seek to be appointed the guardian and conservator about three months prior to your child’s 18th birthday; 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 child’s parents, with each parent seeking to serve as co-guardian and co-conservator; however, parents who have separated or divorced might agree that the child’s primary caretaker serves first in these roles, while the non-primary custodian is 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, including an adult sibling of your child.

Inheritance and estate planning

Proper estate planning ensures your child’s inheritance is protected after your death. You can also include 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 establish a Special Needs Trust. This legal arrangement details the funding needed to maintain your child’s specific care, lifestyle, and other necessities.

One key advantage of a special needs trust fund is if someone sues your adult child, the money in their fund is invulnerable to a lawsuit judgment for two reasons. First, the funds belong to the trust entity and not your child personally; second, the trust provisions control the funds’ specific purpose.

As part of your estate planning, you can help your adult child establish a power of attorney as an alternative to guardianship or conservatorship if your child has the capacity to understand what a power of attorney is and know what powers they are granting to you parents if you are the named attorneys-in-fact for your adult child.  A power of Attorney is a legal document that will grant you the ability to make daily life decisions on behalf of your special needs child. There are two types of powers of attorney that might be a better fit over guardianship or conservatorship:

• Durable General Power of Attorney. This legal document will allow an individual the right to make administrative and financial decisions. This arrangement is ideal if your special needs child can make fundamental life decisions and manage their daily responsibilities.   
• Durable Medical Power of Attorney/Advance Directive/Health Care Power of Attorney. This legal document will grant you the power to make all medical decisions on behalf of your adult special needs child, including daily medical care and end-of-life medical arrangements.  

Additional factors to consider

There are a few additional factors to consider when it comes to instituting legal considerations that are best for your adult child with special needs:

• Their capacity to communicate wants and needs. Understanding your child’s mental capacity will be the deciding factor in determining the best course of action. Your child should be allowed as much autonomy as possible when discussing their future care and resources.
• Their future employment. If your child is gainfully employed, consider their employment status when exploring possible legal avenues and resources.
• Their future family and welfare. Failing to involve your child in decisions that will impact their future could cause irreparable emotional damage between your child, their future immediate family, and you.

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