Parents of children with special needs understand the importance of establishing a strong support system for their child that includes planning for when they are no longer around to provide the care the child needs.
Some of the most important decisions you must make for your child’s future are planning for their personal and medical care — through a guardianship, if necessary — and providing a solid financial foundation that will preserve their access to supportive services.
Whether your child with a disability is still young or already an adult, it’s never too early (or late) to begin estate planning with their needs in mind. Estate planning should be revisited periodically as circumstances change, but you don’t want to be without a plan in the event that the unexpected happens.
What Is Conservatorship for a Disabled Child?
An adult with special needs may have both a guardian and a conservator, one or the other, or neither. Conservatorship for your disabled child is just like any other form of legal arrangement intended to protect a person. In this case, it is to protect their financial assets when they are unable to do so for themselves. Because of this, the person under a conservatorship is called the “protected person.”
Conservatorships are not generally intended as preplanned solutions to managing the finances of an adult child with special needs. In fact, the courts — and most advocacy groups for persons with special needs — seek to explore alternatives to conservatorship because of the seriousness of the arrangement and the difficulty in reversing it.
Should a conservatorship be unavoidable, there are still steps you or your child’s guardian (if you are deceased) can take to honor your child’s financial autonomy to the highest degree possible.
What Are the Duties and Limitations of a Conservator?
Under Massachusetts law, the Probate and Family Court determines who is capable of making the kinds of decisions addressed by a conservator. Some common choices are a parent or another party, such as a sibling, who has already been nominated in a power of attorney arrangement. However, there is no guarantee the court will choose a conservator based on their relationship to the person who needs protection, and it can even be a stranger.
Over 2 million adults with disabilities live in nursing homes or group homes. In order to avoid financial abuse and exploitation, unless they also happen to be a relative, a long-term care facility staff member or paid caretaker may not serve as a conservator.
The conservator’s duties may be appointed with limitations that the court has imposed in order to retain some of the protected person’s decision-making rights, such as the ability to:
- Have and spend a certain amount of money each week
- Purchase and give gifts to whomever they please (often within a certain dollar amount per month)
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How Do I Get Conservatorship for My Disabled Child?
To become a conservator for your child, you must file a petition with the Probate and Family Court that includes documentation to support your assertion that your child is unable to manage their finances, as well as how you intend to do so. Your petition will need to answer the following questions.
- Why is conservatorship needed? Your petition for conservatorship will need to be supplemented with a Clinical Team Report, which is used by the judge in determining whether an adult with intellectual disabilities needs a conservator.
- What harm will conservatorship prevent? The responsibility of demonstrating that the person under consideration for protection needs a conservator will fall on the petitioner. The court may ask the petitioner what other, less restrictive alternatives have been considered, depending on the individual’s degree of mental capacity and ability. Anticipating this question and addressing it on the petition can help simplify the already-complex process.
- How will the conservator prevent financial harm? The petitioner must explain what steps they will take to reduce or prevent financial harm. In this section, particular limitations may be addressed, such as allowing the protected person access to some, but not all, of their funds.
How Long Does Conservatorship Last?
A permanent conservatorship lasts until the protected person dies or a judge revokes it. Petitioning for a removal of a conservatorship can be a difficult task, especially for some adults with special needs.
A temporary conservatorship lasts for 90 days, and the court may extend the order for an additional 90 days. After that, the conservator may petition for a permanent arrangement if no other arrangement has been made to address the financial needs of the protected person.
In other cases a conservator is appointed only for a single transaction, such as the sale of home, or creation of another financial arrangement, such as funding a trust.
What Are Alternatives to Conservatorship for a Child with Special Needs?
For adult children with disabilities, there are unique alternatives to conservatorship. According to the Mental Health Legal Advisors Committee (MHLAC), the purpose of estate planning is to make decisions about financial matters that dignify autonomy while also protecting financial interests. When deciding on the best course of protection for your child, there are other legal arrangements that can provide financial assistance to disabled adults.
Conservatorship alternatives are used as part of a system known as supported decision-making (SDM), which includes assistance with making financial decisions.
1. Representative payee: This person receives United States Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payments for a person who is not fully capable of managing their own benefits and, in turn, responsibly and ethically assist with money management.
2. Power of attorney: This allows a person, called the Attorney-in-Fact, to be appointed by the principal (who may be either your disabled child or their guardian) to manage and protect your child’s money, property and business affairs as well as make financial decisions in their best interest.
Some alternatives to conservatorship take into account the importance of preserving your child’s access to public benefits. One such alternative is a special needs trust, which allows the trustee to:
- Manage money over the lifetime of the child
- Protect the child’s eligibility for public benefits
- Plan for future funding should public benefits ever be restricted
In most cases a trust is one way to avoid the need for a conservator for yourself, your loved ones or your children. Estate planning almost always removes the need for the extreme step of conservatorship, along with offering a number of other benefits, including reducing tax burdens, protecting digital assets and providing a path for continued medical care for special needs or elderly family members. At The Law Offices of Kimberly Butler Rainen, we work with each family to explore which estate planning tool — or combination of tools — will provide the most comprehensive support for your child’s current and future needs.
Contact our office today to schedule your consultation today, and let us help you create the strongest plan for your family’s future.
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