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Naming a Legal Guardian for Your Special Needs Child in Your Will

Parents of special needs children face unique challenges every day. From helping their children participate in mainstream activities to advocating for appropriate modifications to their educational setting, special needs parents do it all for the love of their unique and wonderful kids.

So it can be very emotionally difficult to consider what would happen if you were no longer able to care for your child. Naming a guardian in the event something happens to you presents challenging scenarios to think about. That person would be entrusted with helping your child negotiate grade school or prepare for adulthood. If you have not yet crafted a will and established a legal guardianship, here are reasons to act promptly.

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What happens to my child if I die?

If your child’s other parent is still alive, that parent may naturally assume guardianship, unless your parenting circumstances are more complicated. Nevertheless, too many people procrastinate about naming a guardian because they assume a family member will automatically fill the role. That assumption has been proven false time and time again.

When parents fail to appoint a guardian in the event they die or become unable to care for their child, the decision goes to the courts. A sibling, grandparent, or trusted friend will need to seek court approval to begin overseeing your child’s needs. When someone dies without a guardian designated in their will, judges have no way to know the parent’s wishes.

The methods used by the courts to determine who serves the child’s best interests may be considerably different than the parent’s. Even if the responsibility falls to a family member, it may not be the one you would have chosen. What happens to a child if a parent dies without naming a guardian in their will is usually out of the parent’s control.

Who should I pick to be a guardian for my special needs child?

To say that choosing the right guardian to care for your beloved child is a major decision would be something of an understatement. You are making one of the biggest life decisions, and it could impact your child for years.

There are considerations that are common among all parents, as well as ones unique to the special needs community. Parents generally consider a variety of factors, including religious affiliation, economic stability, personal values, geographic location, and other children in the family. As a special needs parent, you are also tasked with answering the following questions about suitable guardians.

  • Will the guardian keep my child in the school system where their education program has been established?
  • Does this person have experience with special needs children?
  • Does the potential guardian understand the challenges of my child’s daily life?
  • Should I choose someone my child already has a relationship with?
  • Do the candidates have the personal bandwidth to manage another child, particularly one with special needs?
  • What would happen if my top choice could not serve as a guardian?

The answers to these and other questions generally helps to narrow the field to someone willing and capable of the responsibility. Common sense dictates that you should have a backup in the event a first choice cannot serve. The crucial next step is ensuring the right person enjoys the force of law by putting them in your will.

How do I name my child’s guardian in my will?

It’s essential for parents to create a will, or update an existing one, to make certain the guardianship becomes legally binding. If you are like many who have kicked the can down the road, Rocket Lawyer offers customizable Wills with Guardianship provisions that are simple and affordable to complete. Rocket Lawyer On Call® attorneys are available to answer questions before, during, and after the process of creating your will, which is especially important given the heightened circumstances of special needs families.

How do I ask someone to be the guardian of my special needs child?

Too often, people think of this as a purely abstract commitment and feel as if it will never really happen. That’s why asking someone to be your child’s designated guardian requires a frank and candid conversation. They must understand the daily realities of caring for a special needs child. The point must be crystal clear that agreeing to be included in your will is a serious commitment that could come to fruition.Consider discussing how you would like your child to be raised and show that person the educational program that has been established. Talk about life after grade school and the level of autonomy you anticipate your child achieving. Make sure the person understands this could be a life-changing event and should not be taken lightly. It’s usually in a parent’s best interest to approach multiple people and designate a backup as well. If you don’t have a legal guardian or need to update your will, ask a lawyer for help today.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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