April 2018 Question of the Month
My spouse and I have filed for divorce. We have two children. One child is age 17 with special needs. Everyone keeps telling us that we need a special needs trust and guardianship for our child, but I don’t know what that means. I am also concerned that not all of the issues in our divorce will be decided amicably.
Special needs planning and decisions can be stressful, especially during and after a divorce, including obtaining SSI and Medicaid for your special needs child at age 18, making decisions about programming called “Self Direction” in New York State (NYS), legal guardianship, and special needs trusts. At the outset, it is very important to address these potential future issues in special needs planning and develop a method for communication with your former spouse to avoid or minimize conflict, as well as an agreement for resolution of conflicts, to avoid returning to court.
What does this mean?
Reality check: Legal guardianship that designates divorced parents as co-guardians (called 17A guardianship for persons with developmental disability or intellectual disability in NYS) has no built-in mechanism within the court system to resolve disputes and disagreements over the special needs child’s or special needs adult child’s health care decisions, housing, program enrollment, and other issues.
Even establishing a special needs trust for child support, or for the child’s future inheritance, may be a source of friction for a divorcing couple and not easily resolved in a court. It is crucial to bring potential issues and solutions to the divorce settlement process so that the key issues – visitation, religious upbringing, education, the special needs trust – are addressed while your child is a minor and can be agreed to continue after the child is over age 21.
An experienced special needs attorney – who has completed training as a conflict coach (one-on-one process to facilitate goals) or mediator (serving as a “neutral” who facilitates a couple’s dialogue to help them reach mutual goals and solutions) – can help you address these issues and serve as a special needs consultant to one or both of your divorce attorneys. The consulting special needs attorney can also prepare a written agreement outlining the issues and methods for resolving potential differences so you and your former spouse can avoid costly post-divorce legal fees in court and have a better ongoing relationship for the benefit of your special needs child.
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