When someone is unable to make important decisions for themselves (often due to age or health issues), it can be helpful to pursue certain legal processes to enable a trusted individual to make these decisions on their behalf. Both guardianship and power of attorney provide important decision-making support, but they do have some distinctions, discussed below, that might make one a better choice than the other in certain situations. 

What is Guardianship?

Guardianship is a legal process by which a court appoints either an individual or an organization to make certain decisions on behalf of someone who is incapable of managing their own affairs. Before issuing an order for guardianship, the court will investigate whether the person is incapacitated or not (except in cases where the guardianship is of a minor).

Because guardianship is established through a court order, the guardian is generally required to provide periodic updates to the court on the well-being of the individual under guardianship, which provides ongoing oversight of the relationship.  Usually, the guardian is responsible for decisions regarding health care, finances, and day-to-day living arrangements.

The person under guardianship necessarily has limited autonomy and may lose some or all of their legal decision making rights.

What is Power of Attorney?

Like guardianship, a power of attorney is a legal process where one person acts on behalf of another, especially in making important decisions. Unlike guardianship, however, the individual (the principal) voluntarily designates the power of attorney to someone else (the agent or attorney-in-fact), and the process does not require court involvement. 

Because the principal is choosing to grant authority to their agent, the power of attorney option provides much more flexibility and control. For instance, the principal can specify the areas in which they want the agent to act (e.g., health care power of attorney; financial power of attorney, etc.), can grant broad or limited powers, and can set specific amounts of time, such as during temporary incapacity or absence due to extended travel or illness.

Although the principal can revoke or alter the power of attorney at any time while they are competent, a durable power of attorney remains in effect even if the principal becomes incapacitated.

Which Option Is Best for You?

If you wish to have a plan in place to delegate decision-making to someone you trust in the event you become incapacitated in the future, establishing a power of attorney is an excellent option. This legal option provides you with a great deal of control, allowing you to manage your finances, healthcare, living arrangements, and other important decisions without court intervention or oversight.

If someone becomes incapacitated, and there is no power of attorney in place, the court will intervene to establish an appropriate guardianship to manage their affairs. Parents of minor children or of children with special needs should make provisions for guardianship in their estate planning to ensure their children are cared for if the parent is unable to.

Start Planning for the Future Now

Having a plan in place before you need one is the best way to ensure your choices about your finances, healthcare, children, and more are honored. Schedule your free consultation with Lonich Patton Ehrlich Policastri to go over your options, whether you are considering setting up a guardianship or power of attorney. We have years of experience helping our clients secure their futures and protect their families through estate planning and family law.

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

Estate planning is one of the best ways to provide for your family when you are gone. When you have a disabled child, it’s even more important to have a plan in place before you actually need it since they will likely need ongoing assistance. While many people set up trusts to distribute funds to their children, your disabled child might benefit from a specific type of trust known as a special needs trust (SNT). The following guide goes over what you need to know about creating an SNT for a disabled child.

What Is a Special Needs Trust?

A special needs trust is a legal document that outlines your wishes for the distribution of funds from your estate to support your disabled child. Since many public benefits require the recipient to qualify as having low income or few assets, you don’t want to leave a large inheritance directly to your disabled child because those assets might disqualify them from receiving government benefits. An SNT protects them financially by distributing funds in a way that does not interfere with any government assistance the child might be eligible to receive. 

Funds in an SNT generally pay for expenses that would not otherwise be covered by public benefits, including:

• Education
• Clothing
• Food
• Vacations and travel
• Hobbies
• Entertainment
• Support services (e.g., a personal care attendant; Meals on Wheels, etc.)
• Certain therapies and out-of-pocket medical care

How to Set up a Special Needs Trust

There are several important steps to take when setting up an SNT.

Choose a Trustee

First, you want to designate a trustee who will be responsible for managing the assets on your child’s behalf. Some important considerations when choosing a trustee include that the person is trustworthy, is willing to serve in this capacity, is young and healthy enough to help your child long-term, has a good relationship with your child, and has the appropriate knowledge and ability to manage finances and comply with legal requirements.

Draft the Trust

Consult with an experienced estate planning attorney who specializes in special needs trusts to help you draft your document. Working with a professional will ensure that your trust is in compliance with relevant state and federal laws and will not interfere with government benefits like Medicaid or Supplemental Security Income. They can also assist you in assessing the future needs of your child and in clearly defining how the funds should be used.

Fund the Trust

After you have created the SNT, you can decide what assets you would like to fund it with, including cash, real estate, investments (including stocks and bonds), and other assets. On your life insurance policy, you can list the SNT as the beneficiary, so assets will transfer to the trust rather than directly to your child. You can also set up the fund so that other people, such as family members, can contribute as well. 

Want to Set Up a Special Needs Trust? We Can Help!

Establishing a special needs trust is a thoughtful step you can take to help safeguard the financial future of your special needs child. Our estate planning group at Lonich Patton Ehrlich Policastri has significant expertise in preparing estate planning documents, including SNTs. Contact us today to schedule your free consultation where we can discuss your unique situation and go over your options with you. 

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.