Understanding Guardianship for Special Needs Children
Guardianship is a legal arrangement in which an individual (the guardian) is granted authority by a court to make personal, medical, or financial decisions on behalf of another person (the ward).
When a child with special needs turns 18, they are legally considered an adult—even if they lack the cognitive or functional ability to make safe, informed decisions. If no legal structure is in place, parents lose the right to access medical records, make education decisions, or manage finances.
Two Main Types of Guardianship:
Guardianship of the Person – Grants decision-making power over personal matters like healthcare, education, and daily living.
Guardianship of the Estate – Grants control over financial decisions, such as managing income, government benefits, or inherited assets.
Alternatives to Guardianship may include:
Supported Decision-Making Agreements
Durable Power of Attorney
Healthcare Proxy or Advanced Directives
These alternatives are best for higher-functioning individuals and should be evaluated with legal guidance.
When and Why to Consider Guardianship
Guardianship should be considered well before your child turns 18. A few indicators that guardianship may be necessary include:
Difficulty understanding or managing personal finances.
Inability to make informed decisions about healthcare or safety.
Cognitive impairments that limit reasoning or judgment.
Risks of Not Establishing Guardianship:
Health providers may refuse to share information with parents.
Schools and services may require adult consent.
Vulnerability to financial abuse or exploitation.
Every family and child is different, so careful evaluation with your attorney and care team is essential.
Types of Guardianship Available
Depending on your child’s specific needs and the level of independence they can manage, courts may offer different forms of guardianship:
1. Full Guardianship
Provides the guardian with broad authority over most aspects of the individual’s life. Best suited for children with significant cognitive impairments.
2. Limited Guardianship
Restricts the guardian’s authority to specific areas (e.g., medical or financial), preserving the child’s independence in others.
3. Temporary/Emergency Guardianship
Appointed quickly in crisis situations—often pending a long-term solution.
4. Standby or Successor Guardianship
Appointed in advance in case the primary guardian becomes unable to serve. Critical for long-term care planning.
Each state may define and process these differently, so legal advice is crucial.
How to Legally Establish Guardianship
The legal process varies by state but generally includes:
1. Filing a Petition with the Probate or Family Court
This petition outlines the need for guardianship and proposes the desired guardian.
2. Medical or Psychological Evaluation
A licensed professional must assess the child’s decision-making ability and document the need for guardianship.
3. Court Investigation or Guardian ad Litem
Some courts appoint an independent investigator to ensure the guardianship is in the child’s best interest.
4. Court Hearing
A judge will review the petition, supporting documents, and any objections before making a ruling.
If there is disagreement among family members or concerns about the guardian’s fitness, the process may become contested.
Financial Planning for Children with Special Needs
Guardianship and financial planning go hand in hand. If not handled properly, even a modest inheritance or savings account can disqualify your child from essential public benefits.
Key Financial Tools:
1. Special Needs Trust (SNT)
A legal trust that allows assets to be held for the benefit of a person with special needs without affecting their eligibility for SSI, Medicaid, or other public programs.
Managed by a trustee, not the child.
Can be used for medical care, education, travel, and more.
2. ABLE Account
Tax-advantaged savings accounts that allow individuals with disabilities to save up to $100,000 without losing SSI eligibility.
Funds can be used for housing, transportation, and other qualified expenses.
The beneficiary must have a disability onset before age 26 (expanded to 46 in 2026 under the ABLE Age Adjustment Act).
3. Government Programs to Plan Around
Supplemental Security Income (SSI)
Medicaid/Medicare
Social Security Disability Insurance (SSDI)
Proper planning ensures your child retains access to these programs even after receiving inheritance or gifts.
Choosing the Right Guardian
The right guardian will have a deep understanding of your child’s needs and a willingness to commit for the long term.
Factors to Consider:
Age and health of the guardian
Relationship and emotional bond with your child
Proximity and availability
Financial stability and parenting philosophy
Make your selection official through legal documentation in your will or estate plan, and be sure to discuss the decision with all involved parties ahead of time.
Updating Your Plans Over Time
As your child matures and circumstances change, revisit your guardianship and financial plans.
Reevaluate the guardian’s ability to serve every few years.
Update trusts and financial accounts to reflect new laws or family situations.
Involve your child in the planning process when appropriate.
Common Mistakes to Avoid
Avoid these missteps that can jeopardize your child’s future security:
Delaying planning until the child turns 18 or beyond
Failing to set up a Special Needs Trust
Choosing an unfit or unprepared guardian
Overlooking updates to government benefit rules
Ignoring the child’s input when they’re capable of expressing preferences
Planning for the future of a child with special needs isn’t easy—but it’s necessary. Guardianship and financial protections give your child stability, dignity, and access to the care they deserve. By taking early, informed steps and working with professionals who understand the legal landscape, you can build a comprehensive plan that honors both your child’s needs and your family’s peace of mind.
How Denevan Falon Can Help
Denevan Falon is a reputable guardianship law firm in South Dakota with extensive experience in guardianship and conservatorship cases. We provide skilled, compassionate guidance to clients navigating these sensitive legal matters.
At Denevan Falon, we bring decades of combined legal experience and a shared commitment to protecting vulnerable individuals and their estates. With backgrounds spanning trusts and estates litigation, business litigation, and complex legal planning, our team delivers comprehensive representation tailored to each unique case.
Here’s how we can assist you:
Trusted Legal Knowledge: We understand the intricacies of South Dakota guardianship and conservatorship law and ensure full compliance with statutory and procedural requirements.
Guidance in Contested Cases: When disputes arise, we offer strategic advice and clearly outline your options to help you make informed decisions during emotionally charged proceedings.
Streamlined Legal Process: From filing petitions to notifying interested parties and setting hearings, we manage the process from start to finish—saving you time and avoiding unnecessary complications.
Clarity for Long-Term Success: We draft clear, enforceable orders that empower guardians and conservators to fulfill their duties effectively and with confidence.
Whether you’re seeking to protect a loved one, manage their affairs responsibly, or resolve a complex guardianship dispute, Denevan Falon is here to guide you toward a secure and favorable resolution.
