Disclaimer: While this article covers some complex legal terms and concepts, we are not lawyers and are not offering legal advice, merely trying to help other parents like ourselves to do what is best for their child. Given that laws vary from state to state, we recommend that you contact a family law lawyer in the state which your child resides.
Once your child turns 18, they are a legal adult, and the government sees them differently. In the government’s eyes, they are an adult and fully qualified to make decisions on their own, including signing contracts, making medical decisions, etc. If they cannot make decisions for themselves, then you need to be prepared to help where you can. However you “can’t” without the proper legal paperwork.
Guardianship/Conservatorship
The first step is usually getting Guardianship or Conservatorship, which can be used interchangeably as different states call them one or the other. We’ll just call it Guardianship from this point for simplicity sake. It is a legal proceeding in a state court to appoint someone to exercise some, or all, of the legal rights of a mentally incapacitated person. The incapacitated individual is typically referred to as the “ward.” Depending upon your child, you may need to only have partial guardianship which you can help define, or you might want full guardianship.
This doesn’t technically have to be your biological child. Our lawyer was involved in a case where a brother was asking to care for his adult brother who had recently fallen and hit his head, causing brain damage which left him unable to care for himself. Family members are usually the caregivers and thus those granted Guardianship, but they don’t have to be.
This is easiest if you and your spouse are the biological parents of the ward, live in the same state, and there are minimal assets involved. If there is one or more persons who could lay claim to be the caregiver, or if the ward is in a different state, or the ward will have “large” assets that need to be managed, this will potentially complicate the process. Even with our simple process it cost us approximately $2,000 for the lawyer and court fees.
In addition to bringing a large check, we also brought in lots of paperwork. Your lawyer might want some of it, all of it, or even some more. We included the official doctor’s diagnosis, a note from the doctor stating that he would not be able to live on his own or make his own decisions, school IEPs, and more. Basically if we had it, we brought it, and let the lawyer figure out what to use. The lawyer may also want to meet with your child to assess them and their needs. Additionally the court might appoint a third party to verify your claims and determine what is best, especially if multiple people are wanting Guardianship.
Depending upon your local court system this can take a month, to several months to process. It took us two months, and our court system is small and easy to work through. I recommend starting three to six months in advance so the paperwork is ready to file on their 18th birthday.
Setting up a Bank Account
If you are granted Guardianship, then the child will probably qualify for SSDI (more on that in a moment). But before you can fully set this up, they’ll need a bank account to deposit the money.
However, having Guardianship means that you can be listed on the account with your child so you can sign for items. Just bring in the Guardianship paperwork and ask about accounts for a guardian and a ward. It probably won’t be listed on their website since it isn’t a normal service, but most banks have them. If you want your child to be able to sign to withdraw money on their own, then you will need to have them with you, if not, then just bring the paperwork. If the bank requires something else, they will let you know.
This was easy once Guardianship was set up and only took a couple of hours. If your child is going to be getting a Social Security check (see below) make sure you tell them. Our bank had to set a special flag on the account to activate that, something we didn’t know when we set it up.
Social Security
Most of the time, when you think of social security, you think of retirement. You know, that thing you hope won’t run out of money before you retire.
However Social Security actually has several functions, one of which is SSDI – Social Security Disability Insurance. SSDI is set up to provide living expenses for someone who is permanently disabled. Bringing in your Guardianship paperwork is step one, along with anything else they require. Depending upon your area this could be relatively quick, to long. It took us about two months, where we know people in other areas that it took seven months or more.
Just because a person has a disability, doesn’t mean that they automatically receive it. Once you apply, they will set an appointment for testing to determine the level of disability and whether the applicant is eligible and how much they are eligible to receive. If you think your child may qualify, then I would encourage you to apply. It does take some time and effort, but it can be very beneficial to your child if they do qualify.
Once our son was tested and approved we worked with his case manager. They will tell you all types of rules and regulations that are specific to your case including how much rent you can charge if they live with you, how much they can keep in their savings account without any reduction in the amount paid to them – it is designed for them to live on, not accumulate wealth, etc. The social security office will want you to come in periodically to review finances and such to make sure the money is for and used by your child.
Try to make an appointment as soon as they turn 18, just make sure the bank account is ready before you go in to avoid any delay. We had to wait a while for an available appointment, luckily he got back payment as if it had started on his 18th birthday.
Setting up a Budget
If your child is able to understand about spending money then you may want to set up a budget with them to help them spend and save their money. A budget can also be useful for documenting expenses for social security reviews and if you share responsibility with another party in how your child’s money is spent.
Start with the regular monthly expenses and then required expenses. Then have them, with your assistance, set up the rest of the categories including setting aside some for saving up for future expenses.
You don’t need an accounting degree, or fancy software to set up a budget. We set up one using Google Sheets with the designated amounts and columns to put expenses. This lets you know how much money is left and if you are overspending in areas.
Trusts and Assets
If your child currently has large assets or may have large assets willed to them, then a special type of trust might need to be set up so it doesn’t prevent them from qualifying for SSDI. Talk with your local social security advisor and/or a financial planner for more information on these. If assets already exist, either as cash, real estate, or other property, you will need to disclose them during the process of setting up Guardianship.
In our state, when you set up the Guardianship, if there was more than $10,000 in assets, a third party had to validate the financial expenditures by the Guardian to ensure the expenses were being used as designated and for the benefit of the ward.
Setting up a Will
Hopefully you’ve already set up a will for yourself, to make sure your child is taken care of in case something happens to you and/or your spouse. When your child turns 18, and you have Guardianship, you want to also make sure they are taken care of if something happens to you. If you don’t have a will then the courts get to decide what happens to your assets and it may not be the way you wanted. Without a will the courts also get to decide what happens to your child. Protect your family by writing a will and make sure their future is secure.
The lawyer you used to set up the Guardianship will probably be able to set up a will with your specific needs since they will be familiar with them.
What Now?
Now you take a breath and go on living your lives. We encourage our son to be as independent as much as is safe and that he can handle. We’re there with him, helping him along the way to help him reach his fullest potential. And really that is the best that anyone can hope for is equipping your child to help them live a happy and fullfilling life.
