For special needs children, guardianship is the only way to give someone legal authority over their persons and property.
Sometimes, the guardianship can be appointed because a minor child with special needs does not have property, and medical care providers are willing to accept the parents’ authority.
It surprises many people to know that a parent is not automatically the legal guardian of a minor child. The parent, by virtue of his or her relationship, is natural guardian having custody of minor children, but a parent is not automatically the financial guardian in charge of a minor’s money or property, known as the “ward’s estate.” Only a court can appoint a financial guardian.
In the case of a minor child, guardianship terminates when the child reaches the age of majority, generally age 18.
When a child with special needs reaches the age of majority, things change. Medical care providers and vendors become reluctant to accept direction from parents who are no longer in charge of a minor child. Even if there was not a legal guardian responsible for a child with special needs, it may be necessary to have a guardian appointed for them as an incapacitated adult.
If there is a legally appointed guardian for the special needs minor, it terminates when the minor attains majority. Another court proceeding would then be needed to appoint a guardian for an incapacitated person.
Not every adult child who has special needs must have a guardian. If the adult child is able to make decisions, then he or she may not require a guardian or conservator at all.
Sometimes, a limited guardianship may be appropriate when a person is able to make some decisions, but not others. For instance, a person under guardianship may retain the right to handle a limited sum of money, for example, $10,000, with all assets above that amount being managed by a guardian or conservator.
The law treats the minor as a separate person in his or her own right, and the control of the minor’s property is governed by laws to protect the minor. Let’s say a child with special needs was injured in an accident and received a recovery. There are several mechanisms for legal supervision and protection of the minor’s property.
- One option is for the court to order establishment of a “sequestered” or “blocked” bank account. Any amount payable in cash to a minor may, by order of the court, be deposited in one or more bank accounts in the name of the minor. This type of court order provides that no withdrawals can be made until the minor reaches age 18, except as authorized by court order.
Some states have statutes that allow small amounts, maybe as much as $25,000, to be received or held and deposited by the minor, or the parent, or another person maintaining the minor without the appointment of a guardian. This is not standard and individual state laws would need to be examined.
The court, upon petition, can appoint a guardian of the minor’s estate without appointing a guardian to the minor. If the court appoints a guardian of a minor’s estate, the guardian must either be a corporation authorized to act as a fiduciary or an adult who, in most states, is not the parent of the minor. However, parent may be appointed a co-guardian with another fiduciary, or fiduciaries. The state statute may direct the court to give preference to a person of the same religious persuasion as the parents. Preference is also sometimes given to a person nominated as guardian by a minor over the age of fourteen (14).
- Persons who transfers property to a minor can make use of the Uniform Transfer to Minors Act (UTMA) and name a custodian to hold and control the minor’s property. UTMA custodianships last until age 21 (and in some circumstances for assets passing under wills, trust and beneficiary designations to age 25).
Source : https://www.thebalance.com/duties-and-responsibilities-of-a-guardian-or-conservator-3505432