Does the family of a child with Special Needs lose the ability to make decisions for that child once the child turns 18?

When your child turns 18, they are considered to be an adult and you do not have a legal right to make their decisions, such as for their finances and health. The needs of each family and situation vary greatly, but many families petition the court for a limited conservatorship of their son or daughter, to continue their legal authority.

Our son has special needs and his grandparents would like to leave a gift for him in their Estate Plan. Do we need to set up a Special Needs Trust for our son to receive that gift?

You do not have to set up a Special Needs Trust for your son to receive gifts from others, although you may do so. His grandparents may also establish a Special Needs Trust in their own Estate Planning documents. It is a good idea to discuss gifts being considered by family members and friends, so that they do not inadvertently leave a gift to your child directly that could jeopardize any public benefits that he is receiving or may receive in the future.

We can assist you in setting up a Special Needs Trust to receive gifts from others and/or to be part of your estate plan to leave an inheritance to your child. We can also assist you to protect his public benefits, when someone does leave an unexpected gift to your child directly.

Do we have to go to court to set up a Special Needs Trust?

It will depend upon the type of Special Needs Trust that you create and the source of the funds that are going into the trust. We can work with you to determine the type of trust that is appropriate for your situation and bring the petition before the court if that is necessary.

We are concerned about the care of our son with special needs, if we lose capacity or die. What type of Estate Planning should we do?

There are additional considerations in Estate Planning, when a beneficiary has special needs. We can assist you by drafting special needs trusts, having additional co-conservators appointed in a limited conservatorship, and planning for the living arrangements for your child. Our experience in counseling families with individuals who have special needs allows us to help you determine who will be the best person to appoint as the trustee and/or conservator.