Special Needs Trusts, Guardianships, and Conservatorships

Estate Planning Attorneys Based in Northern Virginia

As attorneys who draft a wide variety of estate planning documents, we find that our clients often have questions about one of the most versatile estate planning tools currently available: trusts. Broadly speaking, a trust is a fiduciary arrangement in which a trustee holds assets for a beneficiary. There are many different types of trusts, each designed to achieve a certain purpose. If you are a parent of a disabled child who is nearing the age of majority, a particular trust that may be of interest to you is a special needs trust. These types of trusts can also be useful for people caring for older individuals with special needs. At the Sack Law Firm P.C., our Northern Virginia estate planning lawyers, including Stacy E. Costello and Jamie J. Sack, can explain how special needs trusts work, both alone and in conjunction with other legal vehicles such as guardianships and conservatorships.

Most beneficiaries of special needs trusts have very modest means. Their physical or mental condition may prevent them from being able to support themselves financially, leaving them dependent on their families and certain government programs for support. When a disabled individual receives benefits such as SSI (Supplemental Security Income) or Medicaid, it can sometimes be difficult for family members to contribute to that person’s upkeep without inadvertently disqualifying him or her from a much-needed government assistance program. When properly set up and carefully administered, a special needs trust can allow a disabled beneficiary, such as an adult child with severe autism, to enjoy the use of property that is held in trust for his or her benefit without being disqualified from needs-based government benefits.

Trusts, Guardianships, Conservatorships, and Other Estate Planning Tools

In addition to providing financially for a disabled adult child through a special needs or supplemental needs trust, parents may need to petition the court for a guardianship of a child who is about to turn 18 and is unable to care for himself or herself independently. Under Virginia law, children who are 18 or older generally have the legal authority to make their own decisions regarding finances, medical treatment, and similar matters. For parents whose child lacks the legal capacity to make such decisions on their own, a legal guardianship may be necessary. Legal guardianships and conservatorships – a similar procedure in which a conservator is named to oversee a legally incompetent person’s assets – can also protect older people, including the elderly.

In order to obtain a guardianship or conservatorship, a person who seeks to become the legal guardian or conservator of the disabled person must file a petition in the appropriate court. While technically anyone can file such a petition, it is most often a parent or another close family member (such as an adult child, if the person who needs a guardian is an elderly person). After the initial paperwork is filed, the respondent (the person for whom the guardianship is sought) must be notified of the proceedings and advised of their legal rights. A guardian ad litem, who is an independent attorney appointed by the court, will meet with the parties, conduct an investigation, and make a recommendation regarding the guardianship or conservatorship. In deciding whether to grant the petition, the court will consider several factors, including the limitations, self-reliance, and independence of the allegedly disabled person, the availability of less restrictive alternatives, and the suitability of the proposed guardian (or conservator, as the case may be).

Discuss a Special Needs Trust, Guardianship, or Conservatorship with a Northern Virginia Attorney

At the Sack Law Firm P.C., we help residents of Northern Virginia and the surrounding areas with a variety of legal needs, including the drafting of special needs trusts and the filing of petitions for guardianships and conservatorships. If you have questions about a trust, guardianship, conservatorship, or other estate planning matter, call us at (703) 883-0102 or contact us online to schedule an appointment with a lawyer. Our firm also handles real estate transactions and tax matters, and we offer business advice to people who are interested in forming a new business or who are considering a merger, acquisition, or joint venture. We also offer legal advice concerning special education and related services.