Estate Planning with a Mentally Disabled Child
Raising a child has never been easy. Raising a child with mental disabilities is certainly not any easier and brings with it unique challenges. This article addresses a few of those challenges you as a parent may have already faced, or possibly will face down the road. But don’t worry, along with those challenges I’m going to give you solutions. Just like a child with mental disabilities brings their own challenges, they also bring their own unique love to a family.
Scenario #1: My child suffers from Bipolar or Schizoaffective Disorder and has repeatedly been checked into a mental clinic for their own safety. What happens when they turn 18?
Answer: When a child turns 18 the parents lose the ability to make decisions for the child. Even if a child is mentally disabled, the law still sees them as adults. Therefore, parents of a mentally disabled child (whether it be autism, bipolar, Schizoaffective disorder, or any other severe mental disability) should consider starting a Guardianship while the child is 17, so that the Court can grant the Guardianship by the time the child is 18. A Guardianship will allow the parent to decide where the child lives, what medications they should take, and to make normal day to day decisions for the child.
One quick point, a parent that has been appointed Guardian of a person cannot force a person to stay at a mental clinic/hospital against their will. Only a court order, granted during a mental hearing can keep the person at the clinic against their will. This is a process that the clinic initiates in court, not something the parent/Guardian does. However, by having a Guardianship in place, it legally obligates the clinic to inform the Guardian that the clinic has filed the action to keep the child in the clinic. It keeps the parent/Guardian in the loop.
Also, make sure your child signs a HIPAA Authorization and a Medical Power of Attorney on their 18th birthday (or soon after) that grants you, as their parent, the power to view their medical records and make medical decisions. When an adult is checked into a mental clinic and no HIPAA is signed by the child/patient then the clinic is legally prevented from giving out any medical information to anyone, including a concerned parent. Legally, the clinic can’t even confirm that the person is at the mental hospital, which obviously can be extremely frustrating for parents trying to find their child. By having the child sign the HIPAA Authorization and a Medical Power of Attorney, it allows the clinic to give that information to the parent.
Scenario #2: My child has Autism, Down Syndrome, or some other severe mental disability. When I die, who will be their Guardian?
You are able to choose who you wish to be the Guardian of your children by naming them in your Last Will and Testament. If you have children, you should definitely have a Will. This allows you to streamline the Probate process, allows you to decide exactly how your assets are to be distributed and to whom, and it also allows you to choose who you want as the Guardian of your children. You can name one person for all your children, or a different person for each child. In Texas, you can only name two people as Co-Guardians if they are married. It’s important to name at least one Guardian for your children, and if possible, name an alternate or two just in case the person you have named as primary Guardian is unable to serve when you pass away (because they have already passed away, they are disabled, or are financially or emotionally unable to care for your children). The Court will then name your alternate Guardian. If no Guardian has been named in your Will, and your spouse has predeceased you, then the Court may consider applications from other relatives, friends of the family, and government agencies to be your child’s Guardian. Naming your Guardian in your Will allows you control over your child’s upbringing and care after you pass away.
Scenario #3: My child has Autism, Down Syndrome, or some other severe mental disability and they receive government assistance. When I die, will they be disqualified from those government benefits if they receive any inheritance under my Will?
Typically, yes. It does depend on a few factors, but generally if a person receives inheritance outright through a parent’s Will and the inheritance is enough to raise their assets above the government assistance threshold, they will be disqualified from receiving any more government assistance. The best way to avoid this problem is to create a Special Needs Trust for your child. This Special Needs Trust will be the beneficiary under your Will, instead of your child, so the child will never receive any direct inheritance and won’t be disqualified from government assistance. At the same time, this Special Needs Trust will be able to hold the inheritance and use it over the life of the child for their benefit by paying for restaurant bills, the child’s birthday parties, improvements to the child’s room or other personal needs of the child. The Special Needs Trust will be able to provide for everything that the government assistance does not cover.
A Special Needs Trust is a great way to make sure your child still receives the benefits of their inheritance but not disqualify from their current or future government assistance due to their mental disability. A Special Needs Trust needs to be created as a trust while you are living, or created within your Will.
Armed with proper guidance, foresight, and an estate plan designed for your situation, caring for your child with mental disabilities will be less of a legal challenge and allow you to focus more on keeping your child safe, healthy, and loved.
Blaise Regan is a Partner at Regan & Frisbie, PLLC, a law firm focusing on Wills, Trusts, Probate, Contracts, Business Formations (LLC, Corporation, S-Corp Designation), Business Disputes, DTPA claims, and Consumer Litigation.
Regan & Frisbie, PLLC is located at 7160 Preston Road, Suite 100, Plano, Texas 75024.
Comments or questions, feel free to email him at Blaise@RFPlawfirm.com or call him at 469.200.4737.