When Your Special Needs Son or Daughter Cannot Make Decisions for Themselves
From the desk of Del Mar/Carmel Valley Trust and Estate Attorney, Kristina R. Hess
San Diego Estate Planning for Your Family:
What do you do when your adult child has special needs? In the fictitious story about Sam and Sally Smith in my previous post, we discussed a situation where their adult son was considered developmentally disabled. The son was currently receiving social security benefits and when Sam died the issue arose, what to do now that this adult child has inherited the family cabin?
Sam and Sally had thought about creating a Special Needs Trust for their son but never got around to doing it.
Now, that Sam died and left property to their son, Sally needed to get a limited conservatorship or become a conservator over aspects of her son’s estate, in order to help him handle the property that he just inherited.
California Conservatorship for Special Needs
A limited conservatorship, like the name implies, is more limited than a general conservatorship in California. However, it still involves filing a petition with the Probate Court, a hearing and other legal hurdles.
Because developmentally disabled adults can usually do many things on their own, the judge will only give the limited conservator power to do things the conservatee cannot do without help. In Sally’s situation, she will need to apply for a limited conservatorship of the estate of her son and ask for power to handle the inheritance on his behalf.
The petitioner (the person who applies for the conservatorship) will need to show that the proposed conservatee (in this situation, Sally’s son) is unable to manage his own financial affairs and that he would be susceptible to fraud or undue influence.
A conservatorship is also available for elderly relatives who lose the ability to manage their own affairs. In this situation, it is better to be proactive and have your parents do durable financial powers of attorney and advance health care directives (appointing a health care agent). If these planning documents are in place, usually a conservatorship proceeding can be avoided.
However, in Sally’s situation, her developmentally disabled son is an adult and does not have the capacity to execute these estate planning documents, so she must go the limited conservator route.
If you have a son or daughter with special needs, and you need to manage an inheritance or other assets for them, or maybe you need a Special (supplemental) Needs Trust, contact our office and we can assist you.
Caring for your San Diego Family and assisting with all your Estate Planning Needs,