September 19, 2024 • 9 mins
Do I Need to File a Guardianship When My Disabled Child Turns 18?
Parents of disabled children are often encouraged to consider a guardianship by a number of sources – school counselors, case managers, medical advisors, etc. The truth is that guardianships are not always needed.
I. What is a Guardianship? It is a court proceeding in which you ask the court to declare your child to be incompetent. A guardian takes over. Your child is stripped of the legal capacity to act for him or herself.
II. There are Different Kinds of Guardianships. Primarily two kinds:
1. Guardian of the Estate – Money management. If there is no money in the child’s name, no guardian of the estate is needed.
2. Guardian of the Person – Health care and daily living.
III. Advantages of Guardianship.
1. It puts one person in full charge of all decisions.
2. It gives you authority to enforce your decisions.
3. It protects ward’s money/property.
4. It protects the ward and the guardian.
IV. Disadvantages of a Guardianship.
1. Declaring your child incompetent can be demoralizing.
2. It costs $3,000 - $5,000 up front, and $1,500 to $2,500 every year – plus a bond in some cases. 3. You need court approval to spend money (Guardianships of the Estate, only). That costs extra. 4. You must take a lengthy class.
5. You must file reports.
V. Alternatives – Only Applies to the Cooperative and Highly Functional Disabled Child.
1. Power of Attorney.
2. Living Will.
3. Power of Attorney for Health Care.
4. Joint Financial Accounts.
5. STABLE Account.
6. Trusts.
VI. So, do I need to file a guardianship at age 18? Not necessarily – if your child is cooperative and high functioning, try one or more less intrusive options first. You can always “default” to a guardianship, if needed.
Parents of disabled children are often encouraged to consider a guardianship by a number of sources – school counselors, case managers, medical advisors, etc. The truth is that guardianships are not always needed.
I. What is a Guardianship? It is a court proceeding in which you ask the court to declare your child to be incompetent. A guardian takes over. Your child is stripped of the legal capacity to act for him or herself.
II. There are Different Kinds of Guardianships. Primarily two kinds:
1. Guardian of the Estate – Money management. If there is no money in the child’s name, no guardian of the estate is needed.
2. Guardian of the Person – Health care and daily living.
III. Advantages of Guardianship.
1. It puts one person in full charge of all decisions.
2. It gives you authority to enforce your decisions.
3. It protects ward’s money/property.
4. It protects the ward and the guardian.
IV. Disadvantages of a Guardianship.
1. Declaring your child incompetent can be demoralizing.
2. It costs $3,000 - $5,000 up front, and $1,500 to $2,500 every year – plus a bond in some cases. 3. You need court approval to spend money (Guardianships of the Estate, only). That costs extra. 4. You must take a lengthy class.
5. You must file reports.
V. Alternatives – Only Applies to the Cooperative and Highly Functional Disabled Child.
1. Power of Attorney.
2. Living Will.
3. Power of Attorney for Health Care.
4. Joint Financial Accounts.
5. STABLE Account.
6. Trusts.
VI. So, do I need to file a guardianship at age 18? Not necessarily – if your child is cooperative and high functioning, try one or more less intrusive options first. You can always “default” to a guardianship, if needed.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:04):
Listening to Simply Money presented by all Worth Financial. I'mani
Wagner along with Steve Ruby. Retirement Planning, state planning. It
looks different for every person in every family, and specifically
if you have a disabled child, it can look very different.
Joining us tonight is Mark Reckman, our state planning expert
from the law firm of Wood and Lamping. Mark. There's
(00:25):
a lot to this and it does look very different
if your child has kind of a permanent need for
help from you. And so let's get into what people
need to think through here.
Speaker 2 (00:39):
Well, you know, parents have disabled children encounter a lot
of issues as their kids' age, Yes, and they deal
with a lot of resources, both school counselors, case managers,
medical advisors, and they're getting input from lots of different directions.
Speaker 3 (00:57):
So let's talk about the guardianship first and what that
really is and why it might be used in a
particular situation.
Speaker 2 (01:05):
Well, a guardianship comes into this discussion because it is
the legal mechanism we have here in Ohio in which
you ask the court to declare a person to be incompetent,
and if they are found to be incompetent, there's a
guardian appointed the guardian takes over and the individual, but
(01:26):
what we call the ward is then stripped of legal capacity.
Dak for has owned for himself or for herself. And
here in Ohio there are two kinds of guardianships. One
is called a guardianship of the estate, and that means
money management. And two there's a guardianship of the person,
(01:47):
and that means managing healthcare and activities of daily living.
Speaker 1 (01:52):
And how do you even begin to figure out if
you need this for your child in which you do
need in what you should be thinking about long term?
You know, I imagine you know, I'm thinking, you know,
for my children when they turn eighteen. I'm like, oh, okay,
there's a big change here. But certainly if your child
is disabled and needs kind of additional oversight and care,
(02:15):
that has to be a very kind of nuanced situation.
Speaker 2 (02:19):
Well that's exactly right. And here in Ohio and all
the states here in this country, the parents are the guardian,
the presumptive guardian of all children until they turn eighteen,
and so a guardianship does not come into play for
children seventeen and under the question that we're talking about
today is what happens when your child turns eighteen. And
(02:41):
what you find out is that school counselors, case managers,
and medical advisors often are very quick to recommend a guardianship,
either a guardianship of the person or a guardianship of
the estate or both. But they're very quick to say,
when your child turns eighteen, you have to have them
declared incompetent and you have to be appointed to be
(03:02):
their legal guardian. And what I want to talk about
today is that's basically good advice, but it is is
it always good advice? And the answer to that is
not always.
Speaker 3 (03:14):
Yeah, there's very different situations. I think that would apply
as to whether or not you need a full guardianship
over a disabled child. Let's talk about some of the
advantages that you typically highlight versus some of the cons
for having a guardianship.
Speaker 2 (03:31):
Well, probably the number one advantage is that it puts
one person in full charge of all decisions. The number two,
it gives you authority. It gives the guardian authority to
enforce decisions. Number three, it can be used to protect
the ward's money or property. And number four, and this
is a big one, it protects the ward and the
(03:52):
guardian themselves because if the probate court legally appoints a guardian,
then they have the protection and the authority of the
umbrella of the probate court, and that makes them accountable
to the probate Court. But it also reduces their chances
of getting in trouble in other venues.
Speaker 1 (04:13):
All right, mark, my mama, bear heart. Though when I hear,
you know, someone using the word incompetence, right, I think about, gosh,
how does that feel to that child? And if there
is an awareness of that, what message does that send?
That has to be part of the equation when you're
making this decision.
Speaker 2 (04:33):
Absolutely, and I listed this as the number one disadvantage
of a guardianship because clearing your child to be incompetent
can be demoralizing to the child. And here, you've raised
a child, and in this case we're talking about children
with special needs. You've been encouraging for the encouraging them
for the last eighteen years that they're okay, that they
(04:55):
can do well, they can be as functional as possible.
And now at age eight, you're going to a court
and saying they can't handle their own affairs or they're
not capable or competent. And that's not just legally, but
it is actually what you're doing when you file for
a guardianship, so you have to be careful about that.
Speaker 3 (05:15):
So before we talk about some of the alternatives to
go in full guardianship, I'm sure there's some costs associated
with guardianship. What does that typically look like.
Speaker 2 (05:25):
Here in Ohio? Well, if it's uncontested, which they usually
are in the cases of parents asking for a guardianship
of a child turning eighteen. If it's a parent who's applying,
the costs can generally run, oh in the five thousand
dollars range upfront, and then there's a maintenance fee. You
have to file annual bi annual reports, both financial and
(05:46):
care reports, and they can run in the two to
two thousand to twenty five hundred dollars a year. In
some cases, you have to post a bond. And what
I mean by some cases is that if there are
significant assets in the guardianship, you have to post a bond,
which means you have to pay an insurance company to
do that.
Speaker 1 (06:06):
So it's not like you just go through this process
and then you're done. It actually requires ongoing work in
and ongoing investment in it as well.
Speaker 2 (06:15):
Well. That's right, because you've got to report to the
Probate Court every two years all the activities you've engaged in.
And there is also what we call a care plan.
The Probate Court requires guardians of the person to file
a rather detailed care plan involving where the child will live,
how they will be treated, what medical treatments they will receive,
(06:36):
what education they will receive, what additional support and care
they will have. This is all done in writing, it's
all filed with the Probate Court, and it has to
be updated every two years.
Speaker 1 (06:47):
What about alternatives? Right for parents who are listening and
this on somewhat drastic and you know your child could
use some help. There is a disability there, they need
some help. What other options would they have other than
going all in on becoming a guardian?
Speaker 2 (07:03):
Well, there are alternatives for what I would call the
highly functional disabled children. Not all disabilities are the same.
There are some individuals who function rather highly with their
disability and they aren't technically incompetent. And for those people
there are some alternatives that work real well. The best
one of all, the first one on the list, is
(07:26):
using a power of attorney, having your eighteen year old
sign a power of attorney after their birthday, appointing you
to be their legal agent for both money and for
health care. Signing a living will and a power of
attorney for health care goes hand in hand with that.
In addition, if your child eighteen year old has some money,
if they're working at Kroger, if they've got some earnings,
(07:48):
you can put money in joint ownership, whether it's cash
in the bank, whether it's investments or whatever. You can
put a second name as an owner on the account
and that gives you some control, some access. There are
also what's a partnership.
Speaker 3 (08:06):
It's a partner should you're working with them at that
point rather than declaring them, you know, incompetent on their own.
So it is an opportunity to kind of work with
with thet child in this situation, a partner together and
teach them. So as as you know you had said,
you bring up a good point that this is alternatives
for those that are more highly functional disabled Children's absolutely right, and.
Speaker 1 (08:28):
I think the key here is understanding that you have
options and alternatives. You know, Mark Reckman are state planning
expert from the law Farm of Wood and Lamping explaining
that man. For parents who have disabled children, there's a
lot more to think through when you are working through
financial plans, retirement plans, of state planning, and this kind
of becomes a part of that as your child transitions
(08:50):
from eighteen to an adult. A lot to think through here,
a lot of options. Appreciate your expertise.
Speaker 2 (08:55):
Mark.
Speaker 1 (08:55):
You're listening to Simply Money, presented by all Worth Financial
here on fifty five KRC Talk station
Listening to Simply Money presented by all Worth Financial. I'mani
Wagner along with Steve Ruby. Retirement Planning, state planning. It
looks different for every person in every family, and specifically
if you have a disabled child, it can look very different.
Joining us tonight is Mark Reckman, our state planning expert
from the law firm of Wood and Lamping. Mark. There's
(00:25):
a lot to this and it does look very different
if your child has kind of a permanent need for
help from you. And so let's get into what people
need to think through here.
Speaker 2 (00:39):
Well, you know, parents have disabled children encounter a lot
of issues as their kids' age, Yes, and they deal
with a lot of resources, both school counselors, case managers,
medical advisors, and they're getting input from lots of different directions.
Speaker 3 (00:57):
So let's talk about the guardianship first and what that
really is and why it might be used in a
particular situation.
Speaker 2 (01:05):
Well, a guardianship comes into this discussion because it is
the legal mechanism we have here in Ohio in which
you ask the court to declare a person to be incompetent,
and if they are found to be incompetent, there's a
guardian appointed the guardian takes over and the individual, but
(01:26):
what we call the ward is then stripped of legal capacity.
Dak for has owned for himself or for herself. And
here in Ohio there are two kinds of guardianships. One
is called a guardianship of the estate, and that means
money management. And two there's a guardianship of the person,
(01:47):
and that means managing healthcare and activities of daily living.
Speaker 1 (01:52):
And how do you even begin to figure out if
you need this for your child in which you do
need in what you should be thinking about long term?
You know, I imagine you know, I'm thinking, you know,
for my children when they turn eighteen. I'm like, oh, okay,
there's a big change here. But certainly if your child
is disabled and needs kind of additional oversight and care,
(02:15):
that has to be a very kind of nuanced situation.
Speaker 2 (02:19):
Well that's exactly right. And here in Ohio and all
the states here in this country, the parents are the guardian,
the presumptive guardian of all children until they turn eighteen,
and so a guardianship does not come into play for
children seventeen and under the question that we're talking about
today is what happens when your child turns eighteen. And
(02:41):
what you find out is that school counselors, case managers,
and medical advisors often are very quick to recommend a guardianship,
either a guardianship of the person or a guardianship of
the estate or both. But they're very quick to say,
when your child turns eighteen, you have to have them
declared incompetent and you have to be appointed to be
(03:02):
their legal guardian. And what I want to talk about
today is that's basically good advice, but it is is
it always good advice? And the answer to that is
not always.
Speaker 3 (03:14):
Yeah, there's very different situations. I think that would apply
as to whether or not you need a full guardianship
over a disabled child. Let's talk about some of the
advantages that you typically highlight versus some of the cons
for having a guardianship.
Speaker 2 (03:31):
Well, probably the number one advantage is that it puts
one person in full charge of all decisions. The number two,
it gives you authority. It gives the guardian authority to
enforce decisions. Number three, it can be used to protect
the ward's money or property. And number four, and this
is a big one, it protects the ward and the
(03:52):
guardian themselves because if the probate court legally appoints a guardian,
then they have the protection and the authority of the
umbrella of the probate court, and that makes them accountable
to the probate Court. But it also reduces their chances
of getting in trouble in other venues.
Speaker 1 (04:13):
All right, mark, my mama, bear heart. Though when I hear,
you know, someone using the word incompetence, right, I think about, gosh,
how does that feel to that child? And if there
is an awareness of that, what message does that send?
That has to be part of the equation when you're
making this decision.
Speaker 2 (04:33):
Absolutely, and I listed this as the number one disadvantage
of a guardianship because clearing your child to be incompetent
can be demoralizing to the child. And here, you've raised
a child, and in this case we're talking about children
with special needs. You've been encouraging for the encouraging them
for the last eighteen years that they're okay, that they
(04:55):
can do well, they can be as functional as possible.
And now at age eight, you're going to a court
and saying they can't handle their own affairs or they're
not capable or competent. And that's not just legally, but
it is actually what you're doing when you file for
a guardianship, so you have to be careful about that.
Speaker 3 (05:15):
So before we talk about some of the alternatives to
go in full guardianship, I'm sure there's some costs associated
with guardianship. What does that typically look like.
Speaker 2 (05:25):
Here in Ohio? Well, if it's uncontested, which they usually
are in the cases of parents asking for a guardianship
of a child turning eighteen. If it's a parent who's applying,
the costs can generally run, oh in the five thousand
dollars range upfront, and then there's a maintenance fee. You
have to file annual bi annual reports, both financial and
(05:46):
care reports, and they can run in the two to
two thousand to twenty five hundred dollars a year. In
some cases, you have to post a bond. And what
I mean by some cases is that if there are
significant assets in the guardianship, you have to post a bond,
which means you have to pay an insurance company to
do that.
Speaker 1 (06:06):
So it's not like you just go through this process
and then you're done. It actually requires ongoing work in
and ongoing investment in it as well.
Speaker 2 (06:15):
Well. That's right, because you've got to report to the
Probate Court every two years all the activities you've engaged in.
And there is also what we call a care plan.
The Probate Court requires guardians of the person to file
a rather detailed care plan involving where the child will live,
how they will be treated, what medical treatments they will receive,
(06:36):
what education they will receive, what additional support and care
they will have. This is all done in writing, it's
all filed with the Probate Court, and it has to
be updated every two years.
Speaker 1 (06:47):
What about alternatives? Right for parents who are listening and
this on somewhat drastic and you know your child could
use some help. There is a disability there, they need
some help. What other options would they have other than
going all in on becoming a guardian?
Speaker 2 (07:03):
Well, there are alternatives for what I would call the
highly functional disabled children. Not all disabilities are the same.
There are some individuals who function rather highly with their
disability and they aren't technically incompetent. And for those people
there are some alternatives that work real well. The best
one of all, the first one on the list, is
(07:26):
using a power of attorney, having your eighteen year old
sign a power of attorney after their birthday, appointing you
to be their legal agent for both money and for
health care. Signing a living will and a power of
attorney for health care goes hand in hand with that.
In addition, if your child eighteen year old has some money,
if they're working at Kroger, if they've got some earnings,
(07:48):
you can put money in joint ownership, whether it's cash
in the bank, whether it's investments or whatever. You can
put a second name as an owner on the account
and that gives you some control, some access. There are
also what's a partnership.
Speaker 3 (08:06):
It's a partner should you're working with them at that
point rather than declaring them, you know, incompetent on their own.
So it is an opportunity to kind of work with
with thet child in this situation, a partner together and
teach them. So as as you know you had said,
you bring up a good point that this is alternatives
for those that are more highly functional disabled Children's absolutely right, and.
Speaker 1 (08:28):
I think the key here is understanding that you have
options and alternatives. You know, Mark Reckman are state planning
expert from the law Farm of Wood and Lamping explaining
that man. For parents who have disabled children, there's a
lot more to think through when you are working through
financial plans, retirement plans, of state planning, and this kind
of becomes a part of that as your child transitions
(08:50):
from eighteen to an adult. A lot to think through here,
a lot of options. Appreciate your expertise.
Speaker 2 (08:55):
Mark.
Speaker 1 (08:55):
You're listening to Simply Money, presented by all Worth Financial
here on fifty five KRC Talk station
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