In most states, a child becomes a legal adult at 18. For families of children with special needs, that birthday can bring an unexpected challenge: the parents' legal authority to make medical and financial decisions on their child's behalf ends. Planning ahead for this transition is one of the most important steps a special needs family can take.
Guardianship and Conservatorship
If an adult child lacks the capacity to make personal or financial decisions, a parent can petition the court to become their guardian or conservator. The terminology varies by state, but the general concept is the same: a court-appointed individual takes on legal responsibility for making decisions on the adult child's behalf.
The process comes with real protections. An attorney represents the individual with the disability, and the court determines whether that person is truly unable to make their own decisions. In financial matters, the appointed person may also be required to post a bond, file annual financial statements, and seek court approval before handling the person's property.
Those protections, however, come with tradeoffs. The court process can be time-consuming, costly, and emotionally difficult for the person with special needs and their family. It also reduces the degree of direct family control.
Durable Power of Attorney
For families looking to avoid the guardianship process, a durable power of attorney can accomplish similar goals with less court involvement. If the person with a disability has sufficient capacity to understand and sign the document, they can appoint an agent to make financial and property decisions, medical and personal decisions, or both, without requiring court intervention or ongoing oversight.
Supported Decision-Making
An increasingly popular alternative to guardianship is supported decision-making. Rather than transferring decision-making authority to another person, this approach keeps the individual with a disability in the driver's seat, surrounded by a trusted team of supporters.
Those supporters, which might include family members, physicians, therapists, or attorneys, help the individual understand their choices and communicate their decisions. The approach works best for people who have the capacity to weigh information and express their preferences, even if they need help doing so.
Representative Payee
If an adult child receives SSI or SSDI but cannot manage their own income, a representative payee can receive and manage those funds on their behalf. The payee is required to file an annual report accounting for how the money was used.
Special Needs Trust
A special needs trust allows a disabled adult to hold assets for certain purposes while preserving eligibility for SSI and Medicaid. A trustee manages and invests the trust assets, often eliminating the need for a separate financial guardian or conservator.
No single approach fits every family. The right combination of tools depends on the nature of your child's disability, their assets, and their capacity to understand and express their choices. An attorney familiar with special needs law is an essential part of building the right plan.
Pulling It All Together
Many families find that a combination of these approaches works best. At Legs Financial, we call this part of the work "The Legwork." It means coordinating the professional support team that makes this planning possible, working alongside your attorney, advisors, and care providers to make sure nothing falls through the cracks.