Monday, May 23, 2011
How Can I Legally Provide for My Incapacitated (or Disabled) Child?
As anyone with a disabled family member knows, planning for the care of an incapacitated person is a complex and challenging undertaking, but it is very important. While the incapacitated individual is a minor child (under 18 years of age), he or she is protected by the same statutes that protect other children including the Child Custody Act. Under this act, a Family Court judge can order either you or your wife or husband to take custody of the child and pay support including medical bills. However, once your incapacitated child reaches age 18, those protections go away. Michigan is one of the few remaining states that does not under any circumstances permit a Family Court judge to order support for a child after he or she reaches 18 in light of special circumstances (such as college attendance or disability). The only concession in the Michigan Child Custody Act is that jurisdiction over the child can be extended until the child is 19 ½ years old if that child is a full-time high school student living with one of his or her parents on a full-time basis. This limitation in the Michigan Child Custody Act has forced parents of incapacitated children to get creative in planning for the future of their children.
How Can I Get Authority to Make Decisions for My Incapacitated Adult Child?
If your disabled adult child is not able to make important decisions for him or herself, then the Probate Court can determine that he or she is incapacitated and can appoint a guardian. A guardian has the authority to make day-to-day as well as emergency decisions regarding the incapacitated adult in the same way a parent has the authority to make decisions for his or her minor child. Obtaining a guardianship can be tricky, and often involves psychological and physical examinations of the incapacitated adult, so it is a good idea to contact an attorney who can help you complete the necessary forms and get the required evidence in place. It is also a good idea to elect a substitute guardian (who serves if you are unable to) or a co-guardian (who serves at the same time you do) in the event that you are no longer able to serve as guardian at some point in the future. Doing so will avoid a scramble to appoint a new guardian after the unfortunate event has occurred. This person could be your spouse, an adult sibling or family member, or other trusted caretaker as long as that person agrees to be appointed and signs an Acceptance of Appointment.
How Can I Prepare for If Something Happens to Me?
There are several steps that you should consider taking as a parent of an incapacitated child in order to protect and provide for that child in the unfortunate event something were to happen to you.
First and most importantly, keep an updated will naming a successor guardian. If you have not gone through the formal Guardianship procedure (explained above), then the inclusion of a named guardian in your will can give the person you name the authority to make decisions on a temporary basis, and will trigger proceedings in the Probate Court to create a formal Guardianship.
Second, you can create what is called a “Spendthrift Trust” for your incapacitated child’s benefit. This trust can be administrated by a bank or by an individual you trust and can provide money for the care, support, and medical expenses of your child even after you pass away. A spendthrift trust can be created while you are alive (with you as the primary trustee and another person or bank as the secondary trustee) or in your will. If you put it into your will the funds will be distributed out of your estate after you pass away.
Third, you should create a Durable Power of Attorney with respect to your incapacitated child. This document gives some other person the authority to make all the decisions you ordinarily would if for whatever reason you become unavailable or unable to make those decisions. Essentially, it creates a go-to person if you can no longer make the decisions for your incapacitated child. Creating this document will allow a seamless transition between you and the new caregiver in the eyes of the medical institutions responsible for the care of your incapacitated child.
It is a good idea to make these documents early and keep them updated in preparation for the unexpected. A probate attorney can help you decide what steps are best for your particular case and can help you select trustees and successor guardians.
What Can I Do If I Get Divorced?
This may be the trickiest area of the law. Because of the limitations of the Michigan Child Custody Act, there is no way for a Family Court judge to force your ex-wife or ex-husband to assist in the care and support of your incapacitated adult child. It is recommended that you contact an attorney early, ideally when you first discover your child’s disability or incapacity, and request a postnuptial agreement. This agreement is essentially a contract between spouses that outlines how the parties will behave if there is ever a divorce. The postnuptial agreement can specify which party will take primary custody of the incapacitated adult child, can require the other party to contribute to the monetary support of the child, and can dictate how medical expenses will be shared between former husband and wife. The later this contract is entered into, the more suspicious some judges will be of it, and the less likely your spouse will be to agree to it, so take steps early to contact a family law attorney who can help you draft an agreement before you really need it.
It is understandably important to you to make sure that your incapacitated child will be cared for in the event of the unforeseen. It may seem at first as though there is nothing you can do, but with careful planning and a proactive approach, your child can be protected and provided for even after you pass away.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may have a legal issue.