Legal Issues in the Transition Phase

Here you will find expert help in understanding estate planning, trusts, wills, and any other legal concern you will need to be aware of to protect your student as they transition into adulthood.

This section will focus on one very important and often complicated issue that parents confront when they have a son or daughter with any type of disability--how to plan their estate to best provide for the child's future security. Parents often may ask themselves:

  • What will our son or daughter do when we are no longer here to provide help when it's needed?
  • Where and how will our child live?
  • Will he or she have enough income to sustain a decent quality of life?

Other questions parents may ask themselves focus on the estate planning process itself:

  • How do I know that my estate plan is going to work?
  • Do I have enough money to hire a lawyer and write a will?
  • Do I even have anything to leave my children?

These are very difficult questions for parents to consider and difficult ones to answer. When a child has a disability--whether it is mild, moderate, or severe--parents have concerns about that child's future. The information provided in this chapter is relevant both to a family whose child is already independent or is expected to be so, and to one whose child will need moderate or extensive support or supervision throughout life.
Parents may have a tentative plan in the back of their mind that one day, in the near or distant future, they will write a will that leaves their son or daughter with a disability sufficient resources to make his or her life secure. Many of them may have already written such a will, yet there are many things to know and consider when planning an estate.

For example, bequeathing a person with a disability any assets worth more than $2,000 may cause the person to become ineligible for government benefits such as SSI and Medicaid. For many individuals with disabilities, the loss of these benefits would be a devastating blow. In addition to the cash benefits and medical coverage that would be lost, the person would also lose any number of other government benefits that may be available to eligible persons with disabilities, such as supported employment and vocational rehabilitation services, group housing, job coaches, personal attendant care, and transportation assistance. Therefore, it is our hope that you, as a special educator, will read and thoroughly consider the information presented in this chapter. The future security of many parents’ sons or daughters with a disability may well depend upon the actions you take to help them establish an estate plan appropriate to their child's needs. After reading this section you should understand the following:

  • How the Type of Disability Affects Estate Planning
  • Physical Disabilities or Health Impairments
  • Cognitive Disabilities or Mental Illness
  • How to Start Planning an Estate
  • What to Consider When Planning an Estate
  • Guardianship
  • Conservatorship (Limited Guardianship)
  • Types of Guardianship and Conservatorship
  • Who Can Best Serve As Guardian /Conservator?
  • Alternatives to Guardianship and Conservatorship
  • Appointment of a Representative Payee
  • Power of Attorney
  • Special Needs Trust
  • Joint Bank Account
  • Informal Advocacy
  • Consequences of Not Filing for Guardianship or Conservatorship
  • Letter of Intent
  • What Happens Once the Letter of Intent Is Written?
  • How to Involve the Student in Writing the Letter of Intent
  • What to Include in the Letter of Intent
  • Writing a Will
  • Establishing a Will: Four Possible Approaches
  • Worksheet for Costing Out Expenses of the Person With the Disability

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