For those of us who have loved ones with special needs, one of the greatest fears is about how they will manage when we are gone. Who will provide for them? Who will help manage their paperwork? Who will give them the care they need every day?

Disabilities cover a broad spectrum, so the answers to these questions depend on what your loved one is like, what challenges they face, and what they prefer. Everyone understands that you need to make estate plans for the future of a minor or for someone who will need help making decisions as an adult. But your estate plan must still take account of the needs of an independent disabled heir. If they inherit money or property directly, those assets could disqualify them from government benefits or care that they need to survive.

Guardianship and Conservatorship

What would happen if you died unexpectedly or suddenly became very ill? If you are a caretaker making plans for your loved one’s future, the first instinct is to turn to someone who could step into your shoes and look after them as you do. Depending on their age and capabilities, this could be a guardian, a conservator, or both.

A guardian’s job is day-to-day care for the well-being of the ward. (This area of law refers to the person under disability as a “ward.”) Where the ward is a minor, they must see to their “support, care, education, health, and welfare” as the minor’s resources permit. Guardians can move their wards, consent to their medical care, and bring or defend lawsuits on their behalf. However, they do not have control over the minor’s assets. That power belongs to a conservator; however, a guardian can also hold that position.

As long as you have minor children, a good Georgia estate planning attorney would recommend that you nominate a guardian in your will, called a testamentary guardian. If you die and your minor child has no other living parent, your nominee can file for guardianship. Barring any substantiated objection, the court will grant them guardianship over the child. Testamentary guardianship, like permanent guardianship for any minor, ends at the age of 18.

You can also set up a standby guardianship, which is wise if you have health concerns or if your child needs someone’s particular care. A designation form can grant guardianship to another person when a parent is incapacitated, as formally determined by a medical professional. This guardianship will end when the parent is able to revoke it or else after 120 days. After that point, the standby guardian will need to apply to the court to continue as the temporary guardian.

In Georgia, courts will appoint guardians for adults “only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.” See O.C.G.A. § 29-4-1. It is not enough simply to show that the person has physical disabilities, developmental disabilities, or mental health issues. According to the law, adult guardianships should be “designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult’s actual and adaptive limitations.”

Likewise, conservators will only be appointed for adults if they “lack sufficient capacity to make or communicate significant responsible decisions” about property. See O.C.G.A. § 29-5-1. Although Georgia law gives adult wards rights to speak freely and challenge their conservatorship proceedings, conservators’ potential legal power over assets is extraordinary. As shown by recent cases in the news, conservators can abuse their positions. You will need to choose this person carefully and work with them—together with your loved one, if possible—to determine the limits that the court should put on any conservatorship order.

Special Needs Trusts in Georgia

If the person you care about is an independent adult living with disabilities, they may still need special consideration in your estate planning. Many disabled people are reliant on government benefits—Medicaid, SSDI, state supplements—to get the medical care and assistance they need. Unfortunately, asset and income thresholds for need-based eligibility are very low and very strict. A cash bequest that would be a small windfall to others could be a catastrophe for someone reliant on government aid.

An SNT (supplemental needs trust) can protect assets for the use of a disabled person without breaching income thresholds. A trustee uses the SNT to pay expenses that benefits cannot or will not cover for the disabled person, such as school tuition, certain utility bills, durable medical equipment, and leisure expenses. The disabled person has no direct access to the trust’s assets; the trustee makes all purchases for them. As such, they have no control over the assets, and the trust should not affect their eligibility for benefits.

However, there are many rules about how exactly these trust funds can be used. State laws differ for SNT trusts, and regulations can change.

Let Us Help

There are many more options for planning the future for a loved one with special needs, such as qualified ABLE savings accounts and Medicaid asset protection trusts (MAPTs). Including your loved one in the planning as much as possible can help everyone rest easier. Attorney Mike Bascom wants to talk to you and your family about your estate plans. Call our office in Cumming at 770-285-5493 to set up your free initial consultation.