Caretaking for a minor who has a disability or other condition has many challenges. The child could be your own, or you could be providing care and oversight for another child who has a disability. Whatever the circumstance, big changes happen once that child turns 18 and goes from being a minor to being an adult. It’s important to have the right legal instruments in place, such as guardianship, for that person’s welfare.
Some conditions can require lifelong care and consideration, especially if there are other people, such as other children, that your legal affairs and estate need to take into consideration. Once a minor becomes an adult, legal and financial factors come into play. While the person you care for is still a minor, it’s a good idea to set up a caretaking and guardianship transition plan that can guide matters related to the person throughout their adulthood, including care, finances, and more.
Your estate plan can also reflect these considerations. All the better, too, is when you’ve made a plan in advance—and not after something goes wrong. Here are some considerations and options.
Why a minor turning 18 is a big deal
When taking care of a minor with a disability, everything changes once that person turns 18. A person’s eighteenth birthday marks the boundary between legal childhood and legal adulthood.
Not only that, there’s a big change for you too: Once a minor becomes an adult, you no longer have the legal right to make decisions for them. In the eyes of the law, that person becomes able to make—and responsible for—their own decisions in life, care, finances, and more. A legal adult can also become eligible for various benefits, such as Medicaid for health insurance, or Supplemental Security Income (SSI) for providing income to someone not able to work.
However, when a person has a condition or disability that requires lifelong care, or if they do not have the mental capacity to manage their own affairs, different decisions can come into play. Along with applying for various benefits on behalf of the minor, you might look into establishing a limited or unlimited conservatorship or guardianship. These are some of the legal means by which a designated person can manage the affairs of an adult who is not able to care for themselves.
If a child needs ongoing care and support, it could also be appropriate to petition the court for a legal guardianship as that child becomes an adult.
Legal considerations for a guardianship, conservatorship, or other caretaking situation
Cornerstones of your plans for this minor might center on guardianship, conservatorship, or a power of attorney. Here are some of the differences.
Under a conservatorship, the court appoints a fiduciary. The fiduciary is responsible for looking after, conserving, and protecting the child or incapacitated person’s assets and best interests. A conservatorship can also be more limited in scope, and may be subject to other legal or circumstantial deadlines or limitations.
Similar to conservatorship yet typically broader and more enduring in scope, guardianship can be similar to being a parent in terms of legal rights and responsibilities. However, the process is in depth and must pass a bar set by the court and relevant law.
Under guardianship, the court will appoint the person who will serve as guardian, after a petition has been filed with and decided on by the court. Persons who have an interest in the affected child or incapacitated person must also receive notice of the petition.
Power of Attorney
As an adult, a person has the right to make their own financial and medical decisions. However, illness, injury, a long-term or permanent medical condition, or other adverse circumstances may make it impossible for the person to make such decisions. To meet such challenges, that person can designate a person to act on their behalf, under a power of attorney, or POA. The person granted such power can then make financial and medical decisions on the affected person’s behalf.
In the absence of a power of attorney, the conservatorship is necessary and must be appointed by court and a guardianship for medical decisions. A POA can streamline decision making, especially under circumstances where time may be of the essence.
A POA is not as broad as a conservatorship or guardianship, however. Typically, a POA only applies when a person is not able to make their own financial and medical decisions. As long as they are of a mental capacity to make their decisions, they may do so.
Does your estate plan address the caretaking situation?
While legal instruments such as those above can be put into effect, it’s also a good idea to consult with an attorney about considerations for your estate plan. Wills, trusts, or other estate instruments may need to be reviewed, updated, or replaced, to ensure that care continues in the matter you intend.
When dealing with minor children, it can be a good idea for a will to nominate a guardian. That way, the court has clarity on who you wanted to take over care for any affected minor children. However, the court must still approve the ultimate guardianship and guardian. It can also be useful to designate a standby or backup guardian as well.
If the person you are caring for is covered under a conservatorship or guardianship, reviewing your estate documents for continuity will also be important. In the event of your death, who would take over the duties and responsibilities you have been managing?
The law also allows for guardians to manage the estate that benefits a person with a disability or incapacitating condition. Ensuring that such legal instruments are up to date can provide a smoother transition so that the care for the affected person continues as you intended.
Consider the long-term caretaking situation
Under the law, caretaking of minors can conclude when that minor turns 18. Sometimes, however, care must continue on a longer term, or perhaps for the duration of that person’s entire lifetime.
When reviewing legal options with an attorney, it’s important to consider not only the current circumstances, but to examine the person’s needs into and throughout their adulthood as well. For example, will they be able to manage their own affairs, or will some sort of guardianship be necessary?
Caretaking means taking care of legal and estate decisions
Providing care for someone is a crucial matter with long-term implications. Ensuring your legal choices are set out can provide continuous care, peace of mind, and the fulfillment of the person’s personal, medical, and financial needs even after you are no longer the person responsible for their care.
What is your caretaking and guardianship transition plan? Let’s review your options today: