Preparing a comprehensive estate plan to protect a child with special needs can be an emotional roller coaster. On the one hand, parents should be relieved that they are taking steps to guarantee that their child will be well cared for after they are gone. On the other hand, confronting one’s own mortality and having to decide who will manage the affairs of a child with special needs can be stressful.
Out of all of the decisions that parents of children with special needs have to confront, the choice of a guardian stands out as one of the most difficult because the person serving in that role will essentially step into the parents’ shoes and take care of the child. But parents don’t have to dread this decision, especially if they follow these steps:
1. Take Time to Choose, But Don’t Take Too Long
Choosing someone to become the guardian of your child is not a decision that should be made lightly, but this doesn’t mean that the decision should keep you up at night, either. Start by putting together a list of potential candidates. Don’t spend a lot of time worrying about the list; just write down anyone who could potentially serve. Then go through the list and eliminate anyone who, for whatever reason, doesn’t strike you as an optimal choice, keeping in mind that no one is going to be a perfect substitute for the original parent. Chances are, this ten-minute exercise will immediately winnow your options down to a couple of people. Once you’ve narrowed down your options, take some time to think about each person on the short list. But don’t get hung up on choosing a person yet; you will still have some work to do.
The key at this stage of the game is to not get overwhelmed with worry about your choices, especially since you haven’t even asked anyone on your list if they are willing to serve. One of the biggest mistakes parents of children with special needs make is getting so caught up in the decision making process that they don’t go ahead with their planning at all. Don’t let this be you — make your list, start to narrow it down, and then proceed to the next step. But whatever you do, don’t stop planning.
2. Talk to Your Potential Guardians and Make Sure to Encourage Honesty
After you’ve narrowed your list of potential guardians down to a few names, talk to each one (separately) and ask them if they are willing to serve. Don’t put these people on the spot with statements like, “If you don’t do it, I don’t know what we’ll do,” and encourage each person to be honest with you about his or her questions and concerns. Don’t look for immediate answers; give your potential guardians time to think about things and get back to you if they are on the fence.
This conversation may immediately narrow down your list, as some people may tell you that they absolutely will not or cannot serve. At the same time, talking face to face with your choices may help you to weed out a few more people.
3. Make a Decision and Put Your Plan into Action
After speaking with your prospective guardians you may be able to make a decision about who will serve. But if you still need to think about your choice, keep a few things in mind. First, you can always change your nomination at a later point, and, in fact, many people do. For instance, it may make sense for young parents to name their parents or older relatives as guardians while those people are still fairly young and then change their estate plans when the original nominee gets too old to serve. Likewise, as friends and family move away, parents may have to update their estate plans as the guardian they have picked for their child no longer lives in the area. Nothing is set in stone.
Here are some additional questions to consider if you are having a hard time choosing a guardian:
o Do I want my child to stay in his community and is the guardian willing to move here if she doesn’t already live here?
o Does the guardian have experience working with people with special needs?
o How does the guardian interact with my child specifically?
o Does the guardian have too much going on in his own life to care for a child, especially one with special needs?
o Does the guardian have children, how old are they and can the guardian take on another child?
o How old is the guardian? Do I have a backup in case he or she can’t serve?
o Does the guardian share my values about things like religion, education and finances?
Although the decision making process may not be easy for every family, it is a necessary one. Remember, the worst thing that you can do is to leave guardianship to chance, which is what will happen if you don’t have an estate plan that reflects your wishes. Once you’ve followed these simple steps and made your decision, put it into effect by meeting with your special needs planner and drafting the proper documents immediately. Again, don’t put it off.
* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.
