What will happen to your children if you are no longer there? Who will care for your child? Parents can become incompetent in a number of ways – an accident, stroke, or disease.
Individuals with special needs require special planning. Likewise, when considering adopting a child, special care is required to ensure everything is handled appropriately.
Our practice works with the friends and family members of individuals with special needs to ensure those individuals are cared for well, able to retain their assets, and where appropriate receive public benefits.
How We Help Facilitate Guardianship
Guardianship is a process in which rights are taken away from an individual (a Ward) based on their incapacity or as a result of them being a minor child with no other available adult to properly care for them. In Wisconsin, we have three separate types of guardianships (guardian of the estate, guardian of the person, and minors). It is important to note that the same individual may serve as both the Guardian of the Person and of the Estate, and in most instances where both are required, it makes the most sense for the same person to serve both roles. In situations where there is a child with special needs, it may be appropriate to appoint both parents as co-guardians so that both parents can continue serving as the legal representative for the child when the child turns 18.
Guardian of the Estate
A Guardian of the Estate is charged with managing a Ward’s financial affairs. This includes paying bills, buying or selling property, bringing a lawsuit on behalf of the Ward, and making sure any dependents’ care is paid for as well. The Guardian of the Estate is required to maintain good records of all transactions relating to the Ward and is required to file an annual accounting with the Probate Court each year.
In instances where the Ward’s assets are limited to under $50,000 it is possible to avoid having a Guardian of the Estate if the Court approves the Guardian of the Person maintaining the assets and income of the Ward instead. Doing so greatly reduces the recordkeeping burden of the Guardian.
The best way to avoid the need for a Guardian of the Estate is to have a valid Financial Power of Attorney in place prior to the Ward losing the capacity to complete estate planning documents. If you believe that the potential Ward may have the capacity to execute estate planning documents, please contact us as soon as possible so that we can try to execute important estate planning documents while the individual has the capacity to do so.
Guardian of the Person
A Guardian of the Person is what most people think of when they hear the word guardian. This person is appointed by the Court to ensure the Ward’s day to day needs are being met appropriately. The Guardian of the Person must determine what sort of care the Ward requires, provide transportation, support, and make the Ward’s life as fulfilling as possible. Essentially, the Ward is treated like a minor child and the Guardian of the Estate is similar to a parent. Guardians of the Person have the ability to place the Ward in nursing home settings to ensure the Ward is receiving the type of care they require based on their condition.
The best way to avoid the need for a Guardian of the Person is to have a valid Medical Power of Attorney in place prior to the Ward losing capacity to complete estate planning documents. If you believe that the potential Ward may have the capacity to execute estate planning documents, please contact us as soon as possible so that we can try to execute important estate planning documents while the individual has the capacity to do so.
Guardian of Minors
If a minor child is left without a fit parent that is able to care for them, a grandparent, or other interested party may file for guardianship of the minor child. Parents have a constitutional right to raise their children unless there is a finding by the Court that they are unfit to parent. Likewise, if a child’s parent or parents are incapacitated, incarcerated, or deceased, it may be necessary for a third party to serve as the child’s guardian to avoid the child being placed in the care of the government or a foster home.
Adoption is the process by which a child’s biological parent(s) terminate their parental rights to a child and the Court creates a new parent/child relationship with the adopting parent(s). Adoption can take many forms, and it is important to speak with an attorney to determine what the best process will be for you and your family.
We often get questions about one parent wanting to terminate their parental rights to avoid the cost of paying child support. In situations such as this, it is only possible for a parent’s parental rights to be terminated if there is a stepparent that is willing and able to adopt the child. It is important to note that the Court will only permit a stepparent adoption if the other parent is married to the adopting stepparent. A grandparent, friend, or other third party is not able to step in the shoes of the parent who wants to terminate their parental rights.
Adoption (aside from step parent adoption) can be quite expensive, primarily because of the cost of an adoption agency visit, which is a requirement to complete non-stepparent adoptions. We encourage our clients to weigh the pros and cons of an adoption and guardianship proceedings when confronted with such scenarios. We’re happy to discuss all options with our clients so that they are in a position to make the best decision for them and their family.
Special Needs Planning
When a child or loved one has special needs, they likely require special planning. Children with special needs on the cusp of becoming an adult may require a guardianship to be put in place to ensure the child is cared for appropriately once they become an adult. Individuals receiving public benefits must be appropriately cared for when the individual receives any large sum of money from lawsuit settlements, inheritances, or other major awards.
We are able to assist our clients in all aspects of planning. If an individual needs a guardian appointed, we can streamline the process and make sure they are making the best decisions for their family. If an individual is receiving public benefits, we can create Special Needs Trusts through Wispact, Life Navigators, or independently. We can also assist our clients in establishing and utilizing ABLE accounts for those receiving public benefits. These planning options provide that the individual will receive the best care possible and retain as many benefits as possible.
Guardianship & Special Needs Resources
Wondering what a legal term means? Our glossary focuses on common legal terms related to estate planning, probate, trust administration, family, and asset protection.
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