Guardians for Disabled Children

McHenry County & Crystal Lake

As the parent of a disabled child, there are so many different considerations in choosing a guardian to include in your estate plan, to make sure that the disabled child is well cared for after you are gone. Most people's first reaction in appointing a Guardian is to appoint their eldest child unless that is the disabled person, then the next eldest child to be the Guardian. People are also inclined to appoint the eldest child as the Trustee and Executor for a Will. Appointing someone to any of these positions without considering their ability to have the time, the expertise, the connection to the disabled person, as well as the ability to coordinate with professionals is a big mistake. Perhaps, none of your children are in a position to take on the responsibility and the time commitment of becoming the Guardian of the disabled sibling. Choosing someone who truly understands the challenges your child faces and who can communicate with the medical and therapeutic community in ascertaining the best resources to help your child overcome their disabilities as much as possible, is crucial. The Guardian should be someone who relates to the disabled person and understands their disabilities.

Another consideration is that the Guardian has to work closely with your Trustee to allocate expenditures on behalf of the disabled person. Therefore, the relationship between the person chosen to be Guardian and the Trustee is an important factor to consider. As a Trustee, you can appoint a Trust Department, a financial advisor, or an adult child to be your Successor Trustee, who would take over upon your disability or death. If it is a professional, not a family member, make sure that they are comfortable working with the Guardian closely in ascertaining how funds should be allocated for the benefit of the disabled person. Often times, appointing Co-Trustees makes the most sense. Having the Guardian or a close family member be the Co-Trustee with the professional who is experienced in handling the assets is a good combination. That way, you bring the expertise and the knowledge of the disabled person's challenges to the person holding the purse strings and they can work together, Trustee and Guardian, to best allocate assets for the disabled person's benefit.

The time element is also something to give serious consideration to. If you have an adult child who is wonderful with his or her sibling who is disabled, but has five small children at home, and a full time job, it may not realistic for them to assume that kind of responsibility and time commitment in becoming the Guardian of the Disabled Person. When the children are out of the house, they might be the perfect person to take over. But, do give serious consideration to the issue of who has the time to make this commitment to your disabled child.

It is always a good idea to have more than one Guardian named in succession. If your first choice of Guardian cannot perform their duties, for whatever reason, then the successor Guardian can take over without the need for any kind of Court intervention. If you fail to name at least one Successor Guardian, the then acting Guardian has to ask the Court to appoint someone to be the Successor Guardian of the disabled person. It is much better if you state in your Trust or Last Will and Testament who is to take over if the first Guardian is unable to fulfill their responsibilities either temporarily or permanently. I recommend naming two Successor Guardians, if possible, so if the second person is also unable to serve, then you have a third person as a fall back position.

Having a properly worded, effective Special Needs Trust prepared to protect your disabled child, carefully choosing the Successor Trustee of that Trust, and the Guardian and Successor Guardians of your disabled child is imperative to insure that your child's quality of life remains the same, whether you are here to look after them or not.