We often assist families of children with special needs with estate planning. One challenge is ensuring that the child has long-term protection. While the child is a minor, the parents have the ability to act in the child’s best interest. But when the child turns 18, he or she is a legal adult. The parents can no longer get medical information, arrange for therapy or oversee finances. Luckily, there is a solution.
In 2019, the Iowa Legislature enacted major changes to the Guardian and Conservatorship statute. The new law went into effect on January 1, 2020 and applies to all new cases, as well as to existing Guardianships and Conservatorships.
A new provision permits the filing of a standby Guardianship or Conservatorship for a minor who is at least 17 ½ years old, which will take effect when the minor turns 18. The standby proceeding for a minor approaching the age of majority starts in Probate Court, rather than Juvenile Court.
Previously, the law required the minor to turn 18 before any proceeding could commence. There was often a delay between the 18th birthday and the hearing establishing a Guardianship or Conservatorship. That can be detrimental to an individual who needs assistance. The new law is very helpful because it allows for action before the individual turns 18.
A Guardianship is often necessary and beneficial because a child with special needs will continue to need guidance even after becoming a legal adult. The Guardianship will allow the Guardian to continue to act as a parent – helping with housing decisions, making medical appointments, and setting up services.
The law also allows for the establishment of a Conservatorship, which gives someone else (the Conservator) control over the Protected Person’s finances. A Conservator can also apply for Social Security disability or Medicaid benefits for the child with special needs.
The Conservatorship can stay in place if the individual will need long-term assistance in handling finances. Or, the Conservatorship can terminate once a Social Security representative payee is set up.
Make sure that you have all of the information you need before your child turns 18. Work with attorney who specializes in disability law and who is on the cutting edge of the new Guardianship and Conservatorship law.